Ott v. Kelley
| Decision Date | 15 January 1934 |
| Docket Number | 6232 |
| Citation | 252 N.W. 269,64 N.D. 361 |
| Court | North Dakota Supreme Court |
Appeal from an Order of the District Court of Grant County Lembke, J.
Affirmed.
Nilles Oehlert & Nilles, for appellant.
The right to a change of venue is one that may be waived, and this may be done impliedly as well as expressly. 40 Cyc. 124; Tubbs v. Embree, 35 N.Y.S. 320; Mackeller v Rogers, 109 N.Y. 468, 17 N.E. 350; Coleman v. Hayes, 87 N.Y.S. 12; Schaaf v. Denniston, 106 N.Y.S. 168.
He who applies for a change of place of trial has the burden of establishing such facts as will warrant the trial court in ordering the change. 41 N.D. 361, 170 N.W. 875; Kramer v. Heins, 34 N.D. 507, 158 N.W. 1061; Robertson Lumber Co. v. Jones, 13 N.D. 112, 99 N.W. 1082; Crosby v. Minneapolis, St. P. & S. Ste. M.R. Co. 57 N.D. 447, 451, 222 N.W. 476; McConnon & Co. v. Sletten, 55 N.D. 388, 213 N.W. 483.
Affidavits to change the place of trial, which state that the moving party can prove material facts by the persons, are held to be sufficient; but affidavits stating that the moving party expects to prove such facts, are insufficient, unless the affidavits disclose grounds for showing that the facts can probably be established by the persons designated. Thurfjell v. Witherbee, 24 N.Y.S. 278; Lyman v. Grammercy Club, 50 N.Y.S. 1004; Dairymen's League Co-op. Asso. v. Brundo, 131 Misc. 548, 227 N.Y.S. 203.
Simpson, Mackoff & Kellogg, for respondent.
From the time of mailing a demand for a change of venue, the defendant's right to such is absolute, and the court loses jurisdiction in the case except to issue the order to change the place of trial. Fargo Silo Co. v. Pioneer Stock Co. 42 N.D. 48, 171 N.W. 849; Maher v. Davis & S. Lbr. Co. 80 Wis. 530, 57 N.W. 357; Montana State v. District Ct. 185 P. 458; Railroad Co. v. Mershon (Iowa) 165 N.W. 86; State v. S.Ct. (Wash.) 168 P. 164.
A change of place of trial might even be granted during the time of the trial. Axford v. Gaines, 50 N.D. 341, 195 N.W. 555.
The motion for a change of place of trial that is required for the convenience of witnesses and to promote the ends of justice is addressed to the sound discretion of the trial court. Wolfson v. Schrieber, 52 N.D. 165, 201 N.W. 830.
The appellate court will not disturb rulings of the trial court in matters that are addressed to that court's sound discretion, except in cases of manifest abuse. Booren v. McWilliams, 33 N.D. 339, 157 N.W. 117; Aylmer v. Adams, 30 N.D. 514, 153 N.W. 419.
The defendant lives in Grant county. The plaintiff brought one action against the defendant in Stark county for personal injury occasioned by a collision between two automobiles, and another action for damages because of the death of her husband in the same collision.
Within the time prescribed by law the defendant demanded a change of venue in the first case and thereafter the parties stipulated a change to Grant county -- no reference being made by plaintiff to any reservation of rights.
The answer in the first case is dated September 23, 1933, and the answer in the second case October 14. On September 27th plaintiff noticed the first case for trial in Grant county.
On October 20 the plaintiff moved for a change of venue to Stark county on the ground of convenience of witnesses and furtherance of justice. By order of Judge Berry the motion was set for hearing before Judge Lembke at Manning, on October 24, 1933. The court ordered a change to Stark county, and from this order defendant appeals.
As stated by appellant, the demand, stipulation, affidavits in support of application for change of venue, etc. "on appeal in the second action are precisely in the same form as those involved in the first action," as are also demand for change of venue and the order. Therefore we consider the affidavits together and determine the two appeals in the one hearing.
The appellant says that the plaintiff, having stipulated a change of venue upon the demand of the defendant, has waived her right to make application for change; that by noticing the first case for trial in Grant county the plaintiff has waived any right to a change of venue in that case; the showing made in support of plaintiff's application is so defective that the court abused its discretion in granting the change of venue.
Appellant says that a party may waive his right to a change of venue and this waiver may be shown "by a stipulation or agreement expressly or impliedly to this effect" or by delay in making the application, etc., citing the rule laid down in 40 Cyc. 124, and Tubbs v. Embree, 89 Hun, 475, 35 N.Y.S. 320, 321; Coleman v. Hayes, 92 A.D. 575, 87 N.Y.S. 12, 14, and Schaaf v. Denniston, 121 A.D. 504, 106 N.Y.S. 168, 170. We do not consider the cases cited are in point, except to show that under certain circumstances a right to trial by jury, or to a change of venue may be lost because of acts of the moving party, and no one disputes this principle.
The stipulation changing the place of trial to the county of the defendant's residence is not in itself a waiver of any right the plaintiff may have to demand a change of venue on the ground of convenience of witnesses. The defendant was entitled to his change as a matter of right. Section 7415, Comp. Laws Supp. 1925, and § 7418 Comp. Laws Supp. 1913. The plaintiff could not prevent it. See Hinsey v. Alcox, 38 N.D. 52, 164 N.W. 296; Fargo Silo Co. v. Pioneer Stock Co. 42 N.D. 48, 171 N.W. 849; Thorson v. Weimer, 59 N.D. 457, 230 N.W. 596; Clark v. Cleveland, 60 N.D. 460, 235 N.W. 342. The stipulation for a change was a mere courtesy to the defendant and relieved him from the necessity, labor and cost of a formal appearance and argument before the district court.
The district court of Stark county could not retain jurisdiction because of convenience of witnesses and the furtherance of justice. That was a matter for the district court of Grant county to determine. Clark v. Cleveland, 60 N.D. 460, 235 N.W. 342, supra; Smail v. Gilruth, 8 S.D. 287, 66 N.W. 452; Ivansuch v. Great Northern R. Co. 26 S.D. 158, 128 N.W. 333. It appears the California courts hold the application for change of venue because of convenience of witnesses can be made in opposition to a change to the proper county (Sheffield v. Pickwick Stages, 191 Cal. 9, 214 P. 852), but we believe the Dakota rule to be the better and more logical one. The rule should be a uniform one and as demand for change to the proper county must be made before the time for the answer expires (Comp. Laws, § 7418), while change for convenience of witnesses can not be made until issues are joined; and as the former is a right and the latter a favor it is more orderly to have these separate issues tried each in the proper court. Hence the stipulation waived no right. Maher v. Davis & S. Lumber Co. 86 Wis. 530, 57 N.W. 357.
The noticing of the case for trial in Grant county was not a waiver of a right to change of venue on the ground of convenience of witnesses and furtherance of justice. It was to the district court of Grant county the plaintiff would apply for a change of venue.
Even if noticing the case for trial is considered acquiescence in the jurisdiction of the district court of Grant county, there was nothing to prevent a subsequent motion to change the venue. If the action had been commenced in Grant county -- the proper county -- plaintiff would have had the right to ask for a...
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