Kinzell v. Payne

• Decision Date: 30 January 1934
• Docket Number: No. 6225.,6225.
• Citation: 252 N.W. 624,64 N.D. 383
• Parties: KINZELL v. PAYNE.
• Court: North Dakota Supreme Court

64 N.D. 383

252 N.W. 624

KINZELL

v.PAYNE.

No. 6225.

Supreme Court of North Dakota.

Jan. 30, 1934.

Syllabus by the Court.

The granting or denying of an application for a change of place of trial, made for the convenience of witnesses and the promotion of the ends of justice, is within the sound discretion of the trial court, and, after a careful consideration of the entire record in the instant case, it cannot be said that there was an abuse of discretion on the part of the trial judge in denying the application.

Appeal from District Court, Burleigh County; R. G. McFarland, Judge.

Action by Nell Kinzell against W. H. Payne. From an order denying a change of venue, plaintiff appeals.

Affirmed.

E. R. Sinkler and G. O. Brekke, both of Minot, for appellant.

Sullivan, Fleck & Sullivan, of Mandan, for respondent.

BURKE, Judge.

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, N. D., 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 case remained on the calendar at the July, October and November terms of the District Court of Burleigh County. She makes no move to transfer the case save on the eve of the December Term. The plaintiff has not used due diligence. * * * The plaintiff has failed to submit any lawful showing that such change of place of trial would be for the convenience of witnesses, or that same would be in the ends of justice, or that justice would be promoted by the change .” 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.

[1] 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, 876;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, 928. 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 No. 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, supra, this court said: “The motion for a change of venue was based solely upon the pleadings in the case and the affidavit of one of defendant's attorneys. The defendant himself made no affidavit, and no reason is shown for his failure to do so.” 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 Shattruck v. Myers, 13 Ind. 47, 74 Am. Dec. 236. The statute reads: “ ‘The Court in term, or the judge in vacation, may change the venue of any civil action, upon application of either party, made upon affidavit showing,’ etc.” (The italics are ours.) Our statute is a little different. It reads: “The court may change the place of trial in the following cases: 1. When the county designated for that purpose in the complaint is not the proper county. 2. When there is reason to believe that an impartial trial cannot be had therein. 3. When the convenience of witnesses and the ends of justice would be promoted by the change.” Section 7418, Comp. Laws, 1913. This statute does not...