Kinzell v. Payne
| Decision Date | 30 January 1934 |
| Docket Number | 6225 |
| Citation | 252 N.W. 624,64 N.D. 383 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Burleigh County McFarland, J.
Affirmed.
E R. Sinkler and G. O. Brekke, for appellant.
Where change of venue is requested, the statute requires not only that the convenience of the witnesses, but that the ends of justice, shall be promoted by the change. Robertson Lumber Co. v. Jones, 13 N.D. 112, 99 N.W. 1082.
If the reasons given by the court for its action are clearly untenable or unreasonable, if its action clearly amounts to a denial of justice, if clearly against justice or conscience reason and evidence, it has abused its discretion. Stave v. District Ct. 80 A.L.R. 340; Reid v. Ehr, 36 N.D. 558, 162 N.W. 903; 27 R.C.L. 828.
When the applicants ask for a change of venue on the ground of convenience of witnesses and furtherance of justice, they must show both points and the witnesses must be other than the parties to the action. McConnon & Co. v. Sletten, 55 N.D. 388, 213 N.W. 483; Kiley v. Meckler, 57 N.D. 217, 220 N.W. 926; Clarke v. Cleveland, 60 N.D. 460, 235 N.W. 342.
The fact that a large number of witnesses will be inconvenienced by the trial of the case far from their residences may of itself be sufficient ground for the conclusion that a removal of the case would promote the ends of justice. Kopf v. Enckering, 64 N.W. 318.
A question not raised in the trial court will not be considered on appeal to the supreme court. Fargo Loan Agency v. Larson, 53 N.D. 621, 207 N.W. 1003; Kolb v. Binger, 206 N.W. 421.
Sullivan, Fleck & Sullivan, for respondent.
A motion for application for a change of venue is ordinarily required to be accompanied by the affidavit of the applicant. 40 Cyc. 156.
Ordinarily the applicant for change of venue must make the affidavit himself and not his agent or attorney unless a good and sufficient reason is shown for its not being made by the applicant. 40 Cyc. 156, 157; Curren v. Story, 41 N.D. 361, 170 N.W. 875.
The right to a change of venue may be waived. 40 Cyc. 124; Wadleigh v. Phillips, 147 Cal. 542, 82 P. 200; McNamara v. Eustis, 48 N.W. 1123; State ex rel. M. St. P. etc. R. Co. v. District Ct. 201 N.W. 298.
The burden of showing good cause for change of venue is upon the applicant. Wolfson v. Schieber, 52 N.D. 165, 201 N.W. 830.
This is an appeal from an order denying a change of venue made on the application of the plaintiff on the ground that such change would be for the convenience of the witnesses. The affidavit is made by the plaintiff's attorney and alleges, as a ground for the change of place of trial of said action from the county of Burleigh to the county of Ward, that the convenience of witnesses in said action demands such change. There is no allegation or claim directly made in the affidavit that by such change the ends of justice would be promoted. The last paragraph of the affidavit does, however, state that the affiant verily believes that the plaintiff in said action is unable to pay the witnesses for their attendance at Bismarck, North Dakota, even though they could be compelled to attend such trial, and that it would be and is practically a denial of plaintiff's rights to compel her to go to trial without the personal presence of said witnesses. There is a strong showing for convenience of witnesses, if the application is seasonably made.
The application is resisted by the affidavit of the defendant and also an affidavit of one of his attorneys. The affidavit of defendant alleges that on the 26th day of October, 1931, there was served upon him, in said Burleigh county, a summons and complaint in which the venue was laid in Ward county, in said state, and by order of court the action was transferred to the county of Burleigh; that on the 18th day of February, 1932, the action came on for trial in Burleigh county before a jury, the plaintiff presented her evidence and after the defendant had commenced the introduction of evidence in defense, the plaintiff dismissed said action without prejudice; that on the 14th day of March, another summons and complaint was served upon the affiant at his home in the city of Bismarck, by the same plaintiff, on the same cause of action, the complaint being, word for word, similar to the complaint in the action which was dismissed.
The defendant's answer was served on the 29th day of April, 1932, and notice of trial was served upon the defendant for the next regular term of the district court of Burleigh county on the 28th day of May, 1932. A note of issue was duly filed, showing that the last pleading was served April 28, 1932, and the case was placed upon the regular June 1932 calendar with a jury in attendance. The trial judge in his memorandum opinion said: The affidavit of the defendant further states that nearly all of the witnesses, referred to in the moving affidavit of the plaintiff to change the place of trial to Ward county, testified at the Bismarck trial either by deposition or in person. That all of the depositions used in said trial and all the exhibits used are in the files of said case in Burleigh county and can be used upon the retrial.
It is well settled that the granting of a change of place of trial for the convenience of witnesses and for the promotion of the ends of justice is a matter of discretion with the trial judge. Curren v. Story, 41 N.D. 361, 170 N.W. 875; Wolfson v. Schieber, 52 N.D. 165, 201 N.W. 830; McConnon & Co. v. Sletten, 55 N.D. 388, 213 N.W. 483. "When the applicants ask for a change of venue on the ground of convenience of witnesses and furtherance of justice, they must show both points." Kiley v. Meckler, 57 N.D. 217, at page 222, 220 N.W. 926. The trial judge bases his decision principally on the laches of the plaintiff in making her application.
The record shows that the last pleading was served on April 29, 1932, and the case went on the calendar of the Burleigh county district court for the June 1932 term, at which term there was a jury and was calendar case number 53. The case remained on the calendar for the July, October and November terms of the district court, and no move to transfer the case was made until the eve of the December term. The trial judge also states that the plaintiff made no affidavit and there was no reason or excuse given why the plaintiff had not signed the affidavits herself.
In the case of Curren v. Story, 41 N.D. 361, 170 N.W. 875 supra, this court said: There is authority holding that it is necessary for a party to make the affidavit and that it cannot be made by the party's agent or attorney. These cases, however, are governed by the statute, as in Indiana, in the case of Shattuck v. Myers, 13 Ind. 47, 75 Am. Dec. 236. The statute reads: "'The Court in term, or the judge in vacation, may change the venue of any civil action, upon the application of either party, made upon affidavit showing, etc.'" (The italics are ours.) Our statute is a little different. It reads: Comp. Laws 1913, § 7418. This statute does not provide that the change shall be made on the application of any party, but it says specifically that the court may change the place of...
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