Pearse v. Bordeleau
| Decision Date | 22 May 1893 |
| Citation | 33 P. 140,3 Colo.App. 351 |
| Parties | PEARSE et al. v. BORDELEAU. |
| Court | Colorado Court of Appeals |
Error to district court, San Juan county.
Action by Joseph Bordeleau against J.N. Pearse and others. There was a judgment for plaintiff, and the named defendant prosecutes a writ of error. Reversed.
W.H. Gabbert and R.D. Thompson, for plaintiff in error.
Geo. H Barnes and H.O. Montague, for defendant in error.
There is only one question requiring consideration in this case and that arises upon the refusal of the court below to change the place of trial on the application of the defendant. On the 14th day of June, 1890, Joseph Bordeleau commenced his action in the county court of San Juan county against J.N Pearse, W.H. Emerson, and George Minor to recover on a money demand growing out of a contract between the parties. As shown by the return of the sheriff, summons was served upon Pearse in San Miguel county. The other defendants were not found. On July 12, 1890, and before answer filed, defendant Pearse made application to the court, supported by his affidavit, to change the place of trial, for the reason that at the time of the commencement of the action, and at the time of making the application, the defendant Pearse was a resident of the county of San Miguel, and the plaintiff a resident of San Juan. What, if any, objection was made to the application does not appear. It seems to be sufficient in form. On the 31st day of August, 1890, the motion was heard by the court, and denied, and judgment was afterwards given for the plaintiff. The defendant appealed to the district court of San Juan county. In that court the motion for a change was again heard, and again overruled, with leave to defendant to renew his application. A new application was accordingly made, substantially the same as the first, which was met by a counter motion of plaintiff to retain the action in San Juan county, on the ground that the convenience of witnesses would be promoted by the retention. The court overruled this second application, and rendered judgment against the defendant. The case comes here on error.
Section 27 of the Code provides that in personal actions, such as this, the cause shall be tried in the county in which the defendants, or any of them, may reside at the commencement of the action, or in the county where the plaintiff resides when service is made on the defendant in such county; and by the terms of section 28 the court may, on good cause shown change the place of trial, where the county designated in the complaint is not the proper county. Under the provisions of the statute, in a case like this, service upon a defendant in a county other than that in which the action is commenced does not give the court of the latter county jurisdiction, without the acquiescence of the defendant; and, when that fact becomes known to the court in the method prescribed by law, it is error to retain the cause, and proceed to an adjudication. When, therefore, the...
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...is mandatory. Insofar as the designation of the venue is concerned, the language used in this section is mandatory. Pearse v. Bordeleau, 3 Colo. App. 351, 33 P. 140 (1893). The word "affect", as used in this rule, is as broad a term as "to determine a right or interest in". Jameson v. Distr......
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