Smail v. Gilruth
| Decision Date | 26 February 1896 |
| Citation | 8 S.D. 287,66 N.W. 452 |
| Parties | SMAIL v. GILRUTH. |
| Court | South Dakota Supreme Court |
Under the provisions of sections 4890, 4891, Comp. Laws, the right of a defendant to have the place of trial changed to the proper county is absolute, if the demand and motion therefor are duly made, and the court cannot retain the case on the ground of the convenience of witnesses.
Appeal from circuit court, Day county; A. W. Campbell, Judge.
Action by Edwin W. Smail against A. C. Gilruth. From an order denying a motion for a change of venue, defendant appeals. Reversed.Bennett & Sheldon, for appellant. Josephus Alley, for respondent.
The principal question presented by the record in this case, and the only one we shall consider, is as to the right of a plaintiff to resist a motion made by the defendant to change the place of trial to the proper county, where the defendant resided when the action was commenced, by proof that the convenience of witnesses and the ends of justice would be promoted by retaining the case in the county in which the action was commenced. This action was commenced in Day county, and the summons was served upon the defendant in Codington county. Within the proper time the defendant, upon an affidavit showing that he was a resident of Codington county at the time the action was commenced, and that the summons and complaint were served upon him in that county, made demand that the place of trial be changed to the latter county, which was followed by a motion to the court for an order so changing the place of trial. The facts stated in defendant's affidavit were not controverted. On the hearing of this motion the plaintiff submitted in opposition thereto an affidavit tending to prove that the convenience of witnesses and the ends of justice would be promoted by retaining the action for trial in said Day county. This affidavit was objected to by the defendant, but the objection was overruled, and the defendant duly excepted. The court thereupon denied the motion of the defendant, to which ruling of the court the defendant duly excepted.
Section 4890, Comp. Laws, provides that, “in all other cases, the action shall be tried in the judicial subdivision in which the defendant or defendants, or any of them shall reside, or may be served at the commencement of the action.” And section 4891 provides that, “if the county designated for that purpose in the complaint be not the proper county, the action may, notwithstanding be tried therein, unless the defendant before the time for answering expires demand in writing, that the trial be had in the proper county. ***” It will be observed that the demand for a change of the place of trial must be made before the time for answering expires, and may be made immediately upon the service of the summons. When the demand is made, therefore, the court will ordinarily have no knowledge of what the issues in the case will be; and if the demand and motion are made before answer or demurrer, as they may be, the court cannot properly postpone the hearing or reserve its decision until the issues are made up. Heald v. Hendy, 65 Cal. 321, 4 Pac. 27. It would seem, therefore, that under the provisions of our Code the defendant had the absolute right to have the place of trial changed to the proper county, where all the subsequent proceedings in the case should be had, subject to the power conferred upon the court to further change the place of trial, for the convenience of witnesses, or other causes specified in the statute, and that such a motion should not be defeated by proof that the convenience of witnesses requires the case to be retained. This right of the defendant is an important one, especially when a defendant is sued in a county hundreds of miles distant from his place of residence. And as said by the supreme court of Wisconsin in Meiners v. Loeb, 64 Wis. 343, 25 N. W. 216: “It is the plaintiff's duty to commence the action in the proper county, and, if he does not, it is his duty to consent to the change to the proper county when demanded by the defendant; and if he refuses to assent to such change, when demanded, it is the duty of the court, on motion made within the proper time, to make an order changing the place of trial to the proper county.” Bringing the action in the wrong county is the fault of the plaintiff, and he has no right to be heard as to the place of trial for the convenience of witnesses, after the proper demand has been made, until the action is transferred to the proper county, where it should have been commenced. The decisions are not in entire harmony upon this question, but the later cases seem to sustain the...
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