McCarty v. Herrick

• Decision Date: 03 October 1925
• Citation: 240 P. 192,41 Idaho 529
• Parties: MAY E. MCCARTY, Executrix of the Last Will and Testament and Estate of E. A. MCCARTY, Deceased, Appellant, v. FRED HERRICK, Respondent
• Court: Idaho Supreme Court

240 P. 192

41 Idaho 529

MAY E. MCCARTY, Executrix of the Last Will and Testament and Estate of E. A. MCCARTY, Deceased, Appellant, v. FRED HERRICK, Respondent

Supreme Court of Idaho

October 3, 1925

CHANGE OF PLACE OF TRIAL - DEMAND FOR - AFFIDAVIT OF MERITS - RESIDENCE-STIPULATION AS TO PLACE OF TRIAL.

1. Written demand for a change of place of trial may be embodied in the affidavit of merits.

2. The facts to be included in an affidavit of merits on a demand for a change of place of trial relate to the grounds upon which the change is sought.

3. The merits of the defense to a cause of action are not for determination by the court on a proceeding to change the place of trial of an action on account of the residence of the defendant.

4. A provision in a promissory note authorizing the payee to commence and maintain an action to enforce payment of the note in a particular county irrespective of the residence of the maker is unenforceable.

APPEAL from the District Court for Kootenai County. Hon. W. F McNaughton, Judge.

Action to recover on three promissory notes. Plaintiff appeals from order granting change of place of trial. Order affirmed.

Judgment affirmed. Costs to respondent.

Ezra R Whitla, for Appellant.

Demand in writing before motion is made is essential. The statute must be strictly pursued or the proceedings fail. (Byrne v. Byrne, 57 Cal. 348; Estrada v. Orena, 54 Cal. 407; Elam v. Griffin, 19 Nev. 442, 14 P. 582; Vermont Central R. R. Co. v. Northern R. R. Co., 6 How. Pr. 106; Gotthelf v. Merchant's Bank, 33 S.D. 259, 145 N.W. 542.)

Until the demand is made the court acquires no jurisdiction to order the change, and the demand must precede the motion. ( Barbour v. Fidler, 31 S.D. 351, 141 N.W. 88.)

"The right to a change of venue is purely statutory, and the statutes giving the right must be strictly pursued." ( State ex rel. Bixman v. Denton, 128 Mo.App. 304, 107 S.W. 446; Oborn v. State, 143 Wis. 249, 126 N.W. 737, 31 L. R. A., N. S., 966.)

In the affidavit of merits the facts must be set forth allowing the court to judge whether it is a meritorious defense or not. ( Holland Bank v. Lieuallen, 6 Idaho 127, 53 P. 398; Beck v. Lavin, 15 Idaho 363, 369, 97 P. 1028; Copper King of Arizona v. Johnson, 9 Ariz. 67, 76 P. 594; Palmer v. Rogers, 70 Iowa 381, 30 N.W. 645; 23 Cyc. 956; Nickerton v. California Raisin Co., 61 Cal. 268.)

If the affidavit is not sufficient it is error to order a change. ( Jensen v. Door, 9 Cal.App. 18, 98 P. 45; Grangers Union v. Ashe, 12 Cal.App. 143, 106 P. 889.)

The venue of an action is only a personal privilege. The statute waives it if he does not take advantage of it in the prescribed statutory manner. (C. S., sec. 6665.)

If the application is not made at the time specified in the statute, it is too late. (Wadleigh v. Phelps, 147 Cal. 541, 82 P. 200.)

"A party may waive, expressly or by implication, the right to have a cause tried in a particular county." (Hearne v. De Young, 111 Cal. 373, 43 P. 1108; Walker v. Stroud (Tex.), 6 S.W. 202; Burton v. Graham, 36 Colo. 199, 84 P. 978; Snyder v. Pike, 30 Utah 102, 83 P. 692; Fletcher v. Stowell, 17 Colo. 94, 28 P. 326.)

It is a general rule that such agreements may be enforced. (27 R. C. L., par. 8, p. 785; Janek v. Buzzelli, 148 Wis. 610, 134 N.W. 1124; Texas Moline Plow Co. v. Biggerstaff (Tex. Civ. App.), 185 S.W. 341; Burnley v. Cook, 13 Tex. 586, 65 Am. Dec. 79; Heslin v. Eastern Bldg. & L. Assn., 28 Misc. 376, 59 N.Y.S. 572; Daley v. People's Bldg. & L. S. Assn., 178 Mass. 13, 59 N.E. 452; Pierson v. Finney, 37 Ill. 29; Goebel v. Stevenson, 35 Mich. 172; Lemmon v. Herbert, 92 Va. 653, 24 S.E. 249; Judah v. Trustees Vincennes Univ., 23 Ind. 272.)

Potts & Wernette, for Respondent.

The statutes of Idaho give to the defendant the absolute right to have the action tried in the county in which he resides. (C. S., sec. 6664, as amended by chapter 79, Laws 1923.).

The provision in the notes that the venue of any action brought to collect the same may be laid in Kootenai County, Idaho, and that the action may be maintained without regard to the residence of the defendants, is void under the provisions of C. S., sec. 5670. (Huber v. St. Joseph's Hospital, 11 Idaho 631, 83 P. 768; Douville v. Pacific Coast Gas Co., 25 Idaho 396, Ann. Cas. 1917A, 112, 138 P. 506; Gaffney v. Royal Neighbors of America, 31 Idaho 549, 174 P. 1014; General Motors Acceptance Corp. v. Talbott, 38 Idaho 13, 219 P. 1058.)

The provision in the notes as to the venue of the action brought to collect the same is against public policy. (Hall v. People's etc. Co., 6 Gray (Mass.), 185.)

It is not within the province of parties to enter into an agreement concerning the remedy for a breach of a contract which is created and regulated by law. (Nute v. Hamilton Mutual Ins. Co., 6 Gray (Mass.), 174; Benson v. Eastern Bldg. & Loan Assn., 174 N.Y. 83, 66 N.E. 627; Home Ins. Co. v. Morse, 20 Wall. (U.S.) 445, 22 L.Ed. 365.)

The affidavit of merits was sufficient under our statute and practice. (State v. Superior Court, 67 Wash. 321, 38 P. 206.)

WM. E. LEE, J. William A. Lee, C. J., and Budge and Taylor, JJ., concur. Givens, J., dissents.

OPINION

WM. E. LEE, J.

This action was instituted by appellant in the district court for Kootenai county on three promissory notes. Respondent appeared and filed a demurrer, a notice of motion for change of place of trial and an affidavit of merits. The court, after a hearing, directed a change of place of trial to Benewah county, which was the county wherein respondent resided. This appeal is from the order changing the place of trial.

Two principal contentions are made upon which a reversal is sought.

C. S., sec. 6665, provides:

"If the county in which the action is commenced is not the proper county for the trial thereof, the action may, notwithstanding, be tried therein, unless the defendant, at the time he appears and answers or demurs, files an affidavit of merits, and demands, in writing, that the trial be had in the proper county."

It appears from the affidavit that respondent was a resident of Benewah county and was not then and never had been a resident of Kootenai county. The affidavit also contains a demand that the venue be changed from Kootenai to Benewah county. The notice recited that respondent would at a stated time move the court for an order changing the place of trial. While it would appear to be better practice for one desiring a change of place of trial, in addition to the affidavit of merits, to file a separate demand in writing, the demand embodied in the affidavit served all the purposes for which a demand is required and contained all the facts necessary to establish a prima facie right to the change. Than that it be in writing, no special form of demand is prescribed.

Appellant insists that the affidavit of merits is insufficient in that it does not set forth the defense to the action. In his affidavit, respondent states that he has a meritorious defense; that he has employed attorneys; and will file a verified answer setting up his defense. He neither sets forth that he has stated the facts constituting the defense to his attorneys and has been advised that he has a meritorious defense, nor does he set forth the facts constituting his defense. This court has never defined an "affidavit of merits," as that term is used in connection with proceedings for a change of place of trial. No reason has been suggested and we know of none why it should contain the showing required in an affidavit to set aside a default. Different objectives are in view; different ends are sought. One desires to set aside a default in order to interpose a defense to the cause of action alleged in the complaint. Respondent can set up every defense in this action in Kootenai that he could in Benewah county, and the purpose of this affidavit of merits is not to secure an opportunity to answer to the merits. Its purpose, the end sought, is a change of place of trial. The statute affords a defendant the right to defend such an action in the county of his residence. On filing the affidavit and the demand required by C. S., sec. 6665, the issue before the court is not the merits of the defense but the removal of the action, and the question of fact for the court to determine is the residence of the defendant. The merits of the question presented to the trial court relate to the grounds for which the law permits a change of place of trial; and, in requiring an affidavit of merits, the statute is not concerned with the character of the defense to the action but with the merit of the demand.

Had the defendant filed a verified answer instead of a demurrer, what should have been contained in the affidavit of merits? Can it be contended that the affidavit in such a case should have recited that the defendant had told his attorney of what his defense consisted, and that the attorney had assured him that his defense was meritorious? The answer being on file, the court would presume that the defendant had related the facts constituting the defense to his attorney and the court could determine the merits of the defense without the "hearsay" opinion of the attorney. Surely it cannot be that C. S., sec. 6665, requires a different affidavit of merits, depending on whether the defendant, when he demands a change of place of trial, "appears and answers" or "demurs." No, the law requires the same affidavit of merits whether the defendant appears and answers, or demurs. Bearing in mind the object of the proceeding and the mandatory character of the statute, we are of the opinion that the facts to be included in the affidavit of merits are those which relate to the grounds for the change, and that the merits of the...