Moscow Vets Club, Inc. v. Bishop

• Decision Date: 20 June 1949
• Docket Number: 7473
• Citation: 207 P.2d 503,69 Idaho 350
• Parties: MOSCOW VETS CLUB, Inc. v. BISHOP et al
• Court: Idaho Supreme Court

207 P.2d 503

69 Idaho 350

MOSCOW VETS CLUB, Inc. v. BISHOP et al

No. 7473

Supreme Court of Idaho

June 20, 1949

Appeal from District Court, Tenth Judicial District, Nez Perce County; Miles S. Johnson, Judge.

Reversed with directions.

Laurence E. Huff, Jack McQuade, Moscow, for appellant.

While on motion of this kind, the number of witnesses is not decisive, where the greatest number reside in the county where the cause of action arose, upon proper motion, the action should be removed to that county if the ends of justice would be promoted. Spaulding v. Hoops, 49 Idaho 289, 287 P. 947.

Paul C Keeton, Lewiston, for respondents.

A motion for a change of venue on the ground of convenience of witnesses is addressed to the sound discretion of the trial court and its act will not be reversed in the absence of an abuse of discretion. Sec. 5-406 Idaho Code Annotated; Shirley v. Nodine, 1 Idaho 696; Sweeney v American National Bank, 64 Idaho 695, 136 P.2d 973; Brown v. Tamarack & Custer Consolidated Mining Co., 37 Idaho 650, 218 P. 363.

Holden Chief Justice. Givens, Porter and Taylor, JJ., and Sutphen, District Judge, concur.

OPINION

Holden, Chief Justice.

July 21, 1947, Moscow Vets Club, a corporation, filed a complaint in the District Court of the Second Judicial District of the State of Idaho, in and for Latah County, against Fields Bishop, N. T. Branch, James Manning and Lyle Craig, to quiet title to certain cash on deposit with and in the vaults of a Moscow bank, including quieting title to certain furniture, fixtures, equipment and supplies.

August 11, 1947, said defendants filed motion to change the place of trial of said action from the Second Judicial District in and for Latah county to the District Court of the Tenth Judicial District in and for Nez Perce county. And on the same day said defendants filed written demand, demanding that the place of trial of said suit be so changed, filing in support of said motion and of said demand the affidavit of the said Fields Bishop from which affidavit it was made to appear that said affiant and said defendant James Manning were residents of Lewiston in said Nez Perce county and that the other defendants were residents of Spokane, Washington. On the day of the filing of the said motion, written demand and affidavit, the Club filed written demand that the place of the trial of the action be retained in said Latah county, and a counter motion for retention of venue in said Latah county, said last written demand for retention of venue being made upon the ground of the convenience of witnesses and furtherance of justice, also supported by affidavit.

October 24, 1947, an order was filed in the District Court in and for Latah county signed by the judge of said district court, Hon. A. L. Morgan, changing the place of trial of the cause from the said Second Judicial District in and for Latah county to said Tenth Judicial District in and for Nez Perce county.

November 12, 1947, Moscow Vets Club moved that the place of trial of the action be changed from the said Tenth Judicial District in and for Nez Perce county to said Second Judicial District in and for Latah county, said motion being made upon the ground of convenience of witnesses and furtherance of justice. And on the same day Moscow Vets Club also made and filed written demand for change of place of trial from said Nez Perce county to said Latah county on the ground of convenience of witnesses and furtherance of justice, the said motion and written demand being supported by affidavit, listing fourteen witnesses, stating briefly the matters which would be established by such witnesses, respectively. May 26, 1948 the motion of said plaintiff Moscow Vets Club to change the place of trial from Nez Perce county to said Latah county was denied. The appeal to this court is from said last mentioned order.

The record shows, without dispute, this controversy arose in Latah county; that a number of appellant's witnesses are business and professional men residing in that county; that appellant's witnesses include the city clerk of Moscow and the assessor of Latah county; that appellant is unable to pay mileage and witness fees and that the testimony of such witnesses is material.

Appellant relies upon Spaulding v. Hoops, 49 Idaho 289, 287 P 947, and State ex rel. Merritt et ux. v. Superior Court, in and for Kitsap County, 147 Wash. 690, 267 P. 503. It appears Spaulding v. Hoops, supra, was an action for damages arising out of an automobile accident in Madison county; that plaintiff Spaulding was injured in the accident; that he commenced his action in Madison county; that plaintiff Spaulding resided in that county and that defendant Hoops resided in Twin Falls county; that the district court, sitting for Madison county, ordered the cause removed to Twin Falls county; that thereafter plaintiff Spaulding moved in the district court of Twin Falls county that the cause be sent...