Ott v. Kelley

• Decision Date: 15 January 1934
• Docket Number: No. 6232.,6232.
• Citation: 252 N.W. 269,64 N.D. 361
• Parties: OTT v. KELLEY.
• Court: North Dakota Supreme Court

64 N.D. 361

252 N.W. 269

OTT

v.KELLEY.

No. 6232.

Supreme Court of North Dakota.

Jan. 15, 1934.

Syllabus by the Court.

1. Where an action, properly triable in the county of the defendant's residence, is begun in another county, and proper demand is made for a change of place of trial, the defendant is entitled to such change as a matter of right.

2. Where an action, properly triable in the county of defendant's residence, is brought in another county, and proper demand is made by the defendant for change of venue, a stipulation on the part of the plaintiff to the effect that the place of trial may be changed to the proper county does not waive any right which the plaintiff may have to a subsequent change from the county of the defendant's residence on the ground of convenience of witnesses and furtherance of justice. though the stipulation does not expressly reserve such right.

3. Where such action is removed to the proper county for trial, the fact plaintiff subsequently notices the case for trial in the proper county does not preclude her from thereafter applying for change of venue on the ground of convenience of witnesses and furtherance of justice.

4. A motion for change of venue on the ground of the convenience of witnesses and furtherance of justice is addressed to the sound judicial discretion of the court.

5. While the burden of proof is upon the party moving for a change of venue, nevertheless the trial court exercises judicial discretion in passing upon the issue involved, and this court will not reverse the order granting a change of place of trial, unless abuse of such discretion is shown.

Appeal from District Court, Grant County; F. T. Lembke, Judge.

Action by Marian Ott against L. R. Kelley. From an order granting plaintiff's motion for a change of venue, defendant appeals.

Affirmed.

Nilles, Oehlert & Nilles, of Fargo, and Murtha & Murtha, of Dickinson, for appellant.

Simpson, Mackoff & Kellogg, of Dickinson, for respondent.

BURR, Chief Justice.

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 14th. On September 27th plaintiff noticed the first case for trial in Grant county.

On October 20th 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 App. Div. 575, 87 N. Y. S. 12, 14, and Schaaf v. Denniston, 121 App. Div. 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.

[1][2] 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 section 7418, Comp. Laws 1913. The plaintiff could not prevent it. See Hinsey v. Alcox et al., 38 N. D. 52, 164 N. W. 296;Fargo Silo Co. v. Pioneer Stock Co. et al., 42 N. D. 48, 171 N. W. 849;Thorson v. Weimer, 59 N. D. 457, 230 N. W. 596;Clark et al. v. Cleveland et al., 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.

[3] 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 et al. v. Cleveland et al., supra; Smail v. Gilruth, 8 S. D. 287, 66 N. W. 452; Ivanusch v. Great Nor. R. 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 answer expires (section 7418, Comp. Laws 1913), while change for convenience of witnesses cannot be made until...