Lady Franklin Min. Co. v. Delaney.
| Decision Date | 08 January 1887 |
| Citation | 4 N.M. 51,12 P. 628 |
| Parties | LADY FRANKLIN MIN. CO.v.DELANEY. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Sierra county.
Replevin. Judgment for defendant. Plaintiffs appeal.
An application for a change of venue will not be granted upon the statutory ground of Code, § 1833, that a fair trial cannot be had within the county where the suit was brought, if the affidavits do not set forth facts sufficient to sustain the application; and where the plaintiffs in an action of replevin own a mine from which the ore in controversy came, and the application is made on the ground that an organized combination was continually stealing ore from the mine, it ought to be shown of what persons this combination was composed, and in what manner they were trying to influence the action of the jury.
I. Morris Young and Masterson & Woodward, for appellants.
Elliott, Pickett & Elliott, for appellee.
This cause is submitted on a motion by the appellee to strike from the files the record, and also on the merits. As the assignment of error is properly made, the motion to strike out must be overruled, and the cause considered on the error assigned.
The single point argued by the appellant in its brief, and therefore the only one necessary to be considered, is the action of the court in overruling the appellant's motion in the court below for a change of venue from the county. The proceeding taken on the application for change of venue is shown by the following from the record:
“THIRD JUDICIAL DISTRICT COURT, SIERRA COUNTY, NEW MEXICO.-November Term, A. D. 1886.
“ Moses Thompson and Trueman E. Chapman, doing Business under the Firm Name and Style of the Lady Franklin Mining Company, Plaintiffs, vs. James Delaney, Defendant.
“Come now the plaintiffs, by their attorney J. Morris Young, and petition this honorable court to grant a change of venue in the above-entitled cause to some other county, and for cause allege as follows, to-wit: (1) That plaintiffs are the owners in charge of the Lady Franklin mine, from which they alleged that the mineral in contest in this cause was originally and wrongfully taken; (2) that a large quantity of the ores produced by said mine, and of great value, to-wit, of the value of many thousands of dollars, has been, and is being continually, stolen from plaintiffs by organized combinations of persons, who are in sympathy with, and directly and indirectly interested or benefited thereby, whose influence, though secret, is extended and constantly realized, and has been thus far efficient in promoting such losses; (3) that the question of such losses to the plaintiffs, and their continuances, has been the subject of extended public comment; that the attempts of plaintiffs to arrest such losses has been earnest and determined, and met with defiance and personal menace.
“Wherefore, and that justice may be done, plaintiffs pray that a change of venue may be granted, and ordered to some other county free from secret influence, interests, and prejudice.
WILLARD S. HOPEWELL, and
JESSE E. THOMPSON.
Subsoribod and sworn to before me this ninth day of November, A. D. 1886.
G. M. FULLER,
Upon which petition for change of venue is indorsed to-wit:
Filed in my office this ninth day of November, A. D. 1886.
W. J. JOLLIN, Clerk.”
Which motion, being taken up by the court, was by the court duly overruled, to which ruling of the court the plaintiffs then and there duly excepted.
The declaration was filed during the April term, A. D. 1886, of the district court, and the writ made returnable at the next ensuing November term, at which time the foregoing action was taken. Two sections of the Compiled Laws must control this question:
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