Kiley v. Meckler, 5534.

• Decision Date: 06 August 1928
• Docket Number: No. 5534.,5534.
• Citation: 57 N.D. 217,220 N.W. 926
• Parties: KILEY v. MECKLER et al.
• Court: North Dakota Supreme Court

57 N.D. 217

220 N.W. 926

KILEY

v.MECKLER et al.

No. 5534.

Supreme Court of North Dakota.

Aug. 6, 1928.

Syllabus by the Court.

Where defendants, before answering, fail to demand a change of the place of trial of the action to the county of their residence, they have waived this right, and such right will not be considered in itself in an application for a change of venue on other grounds.

A party asking a change of venue for the convenience of witnesses and in furtherance of justice has the burden of showing grounds for the change.

Where change of venue is asked on the ground that “convenience of witnesses and the ends of justice would be promoted by the change,” and no claim is made regarding the promotion of “the ends of justice” other than the convenience of witnesses and parties, the application will be considered to have been made for the convenience of witnesses, and in such case the parties are not considered witnesses.

Where the plaintiff commences the action in a county other than the county of the residence of the defendants and the defendants fail to demand a change of venue as a matter of right, the plaintiff has a right to have the case tried in the county selected by her, and no change of venue should be granted under subdivision 3 of section 7418 of the Compiled Laws when it is not shown that justice would be better promoted in another county and that the convenience of the witness requires a change.

Appeal from District Court, Sheridan County; J. A. Coffey, Judge.

Action by Marie Kiley against Dan Meckler and others. From an order granting a change of venue, plaintiff appeals. Reversed.Floyd B. Sperry, of Bismarck, and Wm. Westley, of Cooperstown, for appellant.

Peter A. Winter, of McClusky, for respondents.

BURR, J.

This action was commenced in Burleigh county to recover damages for injuries received in a collision, and the summons and complaint were served upon the defendants, who thereupon answered separately. Notice of trial was served upon the defendants on November 17, 1928. On November 22, 1927, the defendants served notice of motion for change of venue from the county of Burleigh to the county of Sheridan for the convenience of witnesses and in the furtherance of justice, which motion was based upon the affidavit of Peter A. Winter, including the complaint in the case. The defendants allege they had overlooked the fact the action had been commenced in Burleigh county, took it for granted the action had been commenced in Sheridan county, and it was not until the notice of trial was served they noticed the action was pending in Burleigh county; that if they had known the action was commenced in Burleigh county they would have applied immediately for change of venue owing to the fact that all the defendants are residents of Sheridan county, that all the eyewitnesses to the collision reside in Sheridan county, to wit, a hardware man and a garage man, that the collision took place in Sheridan county; and that it is more convenient to try the case in Sheridan county, showing the distances the parties must necessarily travel in attending the trial. The plaintiff contested this motion and filed the affidavits of Floyd B. Sperry, Lloyd Coil, Mike Ryan, Geo. Rafferty, Wm. Kiley, Geo. Payseno, and Marie Kiley, setting forth therein that while the parties reside in Sheridan county, nevertheless none of the witnesses resides in Sheridan county except one or two witnesses for the plaintiff, and it is more convenient for them to attend the term of court in Burleigh county; that her attorney resides in Burleigh county and that the term of court in Burleigh county commences earlier than the term of court in Sheridan county. She then sets up the predominating influence of the defendants' counsel and the racial influence of the defendants in Sheridan county. On December 6, 1927, the court granted a change of venue on the ground “that all the defendants and the plaintiff reside in Sheridan county, N. D., and did reside there at the time of the commencement of this action, and that the accident occurred at or near the village of Denhoff in Sheridan county, and that, therefore, of necessity most of the witnesses and the parties to this action will be benefited and it would be in the furtherance of justice that the action be tried in Sheridan county, N. D.”

On the 11th day of February, 1928, plaintiff made a motion before the same court to reopen the order whereby the place of trial had been changed from Burleigh county to Sheridan county, and filed additional affidavits showing that because of the collision the plaintiff herein had received a broken hip, that she was treated therefor at the St. Alexius hospital in Bismarck; that the witness described in the affidavit for the defendants as being a resident of Sheridan county (the garage man) in fact is a resident of Stutsman county; that the witnesses for the plaintiff, Wm. Kiley and Jas. Kiley, live in Burleigh county; that all of the eyewitnesses to the accident, other than the parties, reside outside of Sheridan county; that the plaintiff had been treated for her injuries by Doctors Quain, Ramstad, LaRose, and Greibenow and had been attended by seven nurses; that all of these are residents of Bismarck and Burleigh county; that all of “these doctors and nurses are necessary and material witnesses”; and that the plaintiff cannot safely proceed to trial without them, stating in general what their testimony would be. The court thereupon reopened the hearing on the defendants' motion and reconsidered the application for change of venue. No further affidavits were filed by the defendants and no denial was made of statements contained in the new affidavit. After a hearing thereon the court on March 17, 1928, entered its order stating therein that:

“The court having considered said motion and the affidavits upon which it was made and the affidavits of the defendants opposed thereto, and the court being duly advised of the premises and having reopened and reconsidered the matter concerning the proper place for the trial of the above-entitled action,” directed that the “action be tried in the place for holding the district court term for Sheridan county, N. D.”

From this order the plaintiff has appealed.

At the outset we are met with a motion to dismiss the appeal on the ground that the order appealed from is not an appealable order and that the record does not have attached thereto the certificate of the presiding judge. The defendant did not appear before this court at the argument, and the plaintiff asked the court for leave to remand the record to have the certificate attached. This motion was held in abeyance to permit argument on the merits. In Solon et al. v. O'Shea et al., 45 N. D. 362, 177 N. W. 757, the court dismissed the appeal for failure to comply with subdivision B of rule 19 requiring the certificate of the judge to be attached. This was because there was nothing to indicate what were the papers upon which the trial court based its order. In the case at bar it would be an unnecessary act to remand the case to secure the certificate of the trial court as the court itself specifies in his order that the court considered “said motion and the affidavits upon which it was made and the affidavits of the defendants opposed thereto” and had “reopened and reconsidered the matter concerning the proper place for the trial of the above-entitled action.” It is quite evident therefore what the record is. The respondent does...