State ex rel. Nielsen v. Superior Court for Thurston County, 28291.
| Decision Date | 07 July 1941 |
| Docket Number | 28291. |
| Citation | 115 P.2d 142,7 Wn.2d 562 |
| Parties | STATE ex rel. NIELSEN et al. v. SUPERIOR COURT FOR THURSTON COUNTY. |
| Court | Washington Supreme Court |
Opinion in department reversed.
For departmental opinion, see 110 P.2d 645.
Thos L. O'Leary and Ernest L. Meyer, both of Olympia, for respondent.
This proceeding is here on application for an alternative writ of mandate to require respondent, Honorable John M. Wilson judge of the superior court for Thurston county, to grant relators' motion for change of venue, and transfer the cause of Nielsen et al. v. Kagy to the superior court for King county, for trial.
This action was originally heard Before Department Two of this court, and on February 25, 1941, the department reversed the lower court and granted relators' motion for change of venue. State ex rel. Nielsen v. Superior Court Wash., 110 P.2d 645. A petition for rehearing Before the entire court was filed and granted, and the case was reargued Before the court sitting En Banc.
Marie Nielsen and husband and Alfred H. Nitsche instituted in the superior court for King county an action against Robert Kagy, to recover damages claimed to have been suffered by Mrs. Nielsen as the result of a collision between an automobile owned by Alfred H. Nitsche, in which Mrs. Nielsen was riding, and an automobile owned and operated by Mr. Kagy. The accident occurred in Seattle. Defendant Robert Kagy moved for a change of venue to Thurston county, that being the place of his residence. This motion was granted. Upon the filing of the cause in Thurston county, plaintiffs moved for a change of venue back to King county, on the grounds that the convenience of witnesses and the ends of justice would be best served by such change.
Affidavits were submitted by the respective parties for and against the motion, and thereafter an order denying the motion was made and entered by the superior court for Thurston county. Relators then applied to this court for an alternative writ. The writ having issued, and a return thereto having been filed, the matter was argued and submitted to the court upon the record as made.
While Judge Wilson is the nominal respondent in this action, for convenience defendant Kagy will be hereinafter referred to as respondent.
From the affidavits filed, it appears that Mr. Kagy was alone in his car at the time of the accident. Relators have filed the affidavits of Alfred E. Eder and Ruth E. Eder, who stated therein that they saw the accident. Each of these affidavits concludes as follows: 'That it would be seriously inconvenient for affiant to go to Olympia to give his testimony and would cause affiant substantial loss in time and earnings if he should be compelled to do so and affiant now feels that he would not willingly go to Olympia to so testify.'
These witnesses reside in Seattle, as also does Alfred H. Nitsche, who sued for damages to his automobile.
On the other hand, the record shows that respondent will call as witnesses the following persons, all of whom reside in Olympia: The doctor who treated respondent for injuries claimed to have been received by him as a result of the collision; the mechanic who repaired his car; and an employee in the office of the city engineer of Olympia, who will prepare a plat of the scene of the accident. It further appears that respondent will ask for an order compelling Marie Nielsen to submit to a physical examination by a doctor of his choosing, that respondent expects to select an Olympia physician for that purpose, and that it will be necessary for such doctor to attend the trial.
Rem.Rev.Stat. § 205-1, provides that an action may be brought in any county in which the defendant resides.
Rem.Rev.Stat. § 209, provides:
'The court may, on motion, in the following cases, change the place of trial, when it appears by affidavit or other satisfactory proof,----
* * *
* * *
As Thurston county is more than twenty miles from Seattle, it is of course apparent that witnesses living in Seattle cannot be compelled to personally go to Thurston county to testify. Their depositions could, of course, be taken.
Relators contend that the trial court acted arbitrarily in denying their motion, and that the court failed to exercise sound discretion in the premises.
Under our venue statutes at the time this application was made, we are of the opinion that in a proceeding of this character, the defendant is the favored party, with the right to have the action brought in the county of his residence. State ex rel. Hand v. Superior Court, 191 Wash. 98, 71 P.2d 24, 28. In the cited case, we quoted from the case of State ex rel. De Lape v. Superior Court, 156 Wash. 302, 286 P. 851, as follows:
been called upon to pass upon the question."'
The disputed question of fact above referred to was as to the residence of the defendant. In the instant case, it is not contended that the residence of respondent is not in Thurston county.
In the instant case, relators moved for a change of venue from the county of respondent's residence to the county of their residence, upon the grounds that the ends of justice and the convenience of witnesses would be best served by such change. This surely presented a question which called for an exercise of judicial discretion by the trial judge....
To continue reading
Request your trial
-
State v. McDonald
...(citing MacKay v. MacKay, 55 Wash.2d 344, 347 P.2d 1062 (1959); State ex rel. Nielsen v. Superior Court, 7 Wash.2d 562, 110 P.2d 645, 115 P.2d 142 (1941)). In overview, no abuse of discretion by the trial court in its evidentiary ruling excluding Lunsford's testimony has been shown that wou......
-
Hawkins v. Rhay
...was manifestly unreasonable or on untenable legal grounds. State ex rel. Nielsen v. Superior Court, 7 Wash.2d 562, 110 P.2d 645, 115 P.2d 142 (1941); State ex rel. Beffa v. Superior Court, 3 Wash.2d 184, 100 P.2d 6 (1940). I find nowhere in this record of trial that the court was unreasonab......
-
Doe v. Puget Sound Blood Center
...reasons. MacKay v. MacKay, 55 Wash.2d 344, 347 P.2d 1062 (1959); State ex rel. Nielsen v. Superior Court, 7 Wash.2d 562, 110 P.2d 645, 115 P.2d 142 (1941). To obtain reversal of the discovery order, absent privilege or irrelevancy, defendant here must demonstrate good cause such that justic......
-
Russell v. Marenakos Logging Co.
...by a contract as to the venue of any action thereon.10 State ex rel. Nielsen v. Superior Court (1941), 7 Wash.2d 562, 110 P.2d 645, 115 P.2d 142; State ex rel. Beffa v. Superior Court (1940), 3 Wash.2d 184, 100 P.2d 6; State ex rel. Schmidt v. Nevins (1935), 180 Wash. 356, 39 P.2d 990; Stat......