State v. Superior Court of Washington In and For Klickitat County

• Decision Date: 23 December 1924
• Docket Number: 18811.
• Citation: 132 Wash. 102,231 P. 453
• Parties: STATE ex rel. ROSS v. SUPERIOR COURT OF WASHINGTON in and for KLICKITAT COUNTY.
• Court: Washington Supreme Court

231 P. 453

132 Wash. 102

STATE ex rel. ROSS v. SUPERIOR COURT OF WASHINGTON in and for KLICKITAT COUNTY.

No. 18811.

Supreme Court of Washington

December 23, 1924

Department 2.

Appeal from Superior Court, Klickitat County; Kirby, Judge.

Writ to review by the State, on the relation of Nettie R. Ross against the Superior Court of the State of Washington in and for Klickitat County, and Homer Kirby, Judge thereof. Writ granted.

Chadwick McMicken, Ramsey & Rupp, of Seattle, for plaintiff.

E. C Ward, of Goldendale, for defendants.

PER CURIAM.

In January, 1924, Francis M. Ross began an action in the superior court of Klickitat county, seeking a decree of divorce from Nettie R. Ross, the relator in this proceeding. The relator was then a resident of Seattle in King county. After the service of process upon her, she, through her attorneys, gave notice of her appearance in the action, and at the same time moved that the venue of the action be changed to King county. The court, after a hearing, denied the motion, whereupon the relator instituted this proceeding in review of the order.

The grounds of the motion were these, namely: (1) That the defendant is a resident of King county; (2) that all of the matters alleged by plaintiff as grounds for divorce occurred in King county; and (3) that the convenience of witnesses and the ends of justice will be forwarded by the change. The relator, in support of her motion, relied upon the allegations of the complaint, supplemented by affidavits. The grounds of divorce, as set forth in the complaint, are cruel treatment of the plaintiff by the defendant, and personal indignities, rendering life burdensome. It is alleged therein that some time after their marriage the parties 'went to Seattle and rented a home,' and the acts of cruelty and personal indignities upon which the complaint is founded are alleged to have taken place while they were residing at Seattle.

In her own affidavit the relator avers that all of the witnesses on whom she will rely to combat the allegations of cruelty charged in the complaint are residents of King county; that she is without means to transport them to Klickitat county, even if they would consent to go; and that, if she is compelled to go to trial in the county in which the action is begun, she will be compelled to submit her defense on depositions, and will be thus denied the benefit of the personal appearance of the witnesses before the trier of the facts. She further avers that she supports herself and her two daughters of a former marriage by means of her own labor, assisted by the charity of her mother. She avers that the lands she owns, described in the complaint, are not a source of revenue; that for many years the receipts therefrom, over and above the costs of its care and protection, have not been sufficient to pay the general taxes levied thereon, and that these she has been compelled to meet from other resources. She also avers that she is now, and for a long time has been, afflicted with a persistent eczema, which requires constant treatment, and that the treatment is of such a nature that it cannot be administered away from the office of her physician. As to her disease and the necessity for treatment, she is supported by the affidavit of her physician. He avers that the disease with which the relator is afflicted is one requiring constant and unintermitted treatment, and that its suspension for any considerable period of time would result detrimentally to the health of the relator.

In opposition to the motion, the plaintiff in the action filed his own affidavit, in which he sets forth an illness and want of means to prosecute his cause in the county to which the change is sought. As to his general health, he is supported by the affidavit of his physician. It appears from these affidavits that he is, and for a long time has been, in bad health, so as to be unable to pursue his ordinary calling, except at infrequent intervals. It further appears, however, that for more than a year last past he has not maintained his actual residence in Klickitat county, but is in fact actually residing at Portland, Or., and it is a physician residing at the last-named place who supports the claim of ill health. He does not aver that he intends to again actually take up his residence in Klickitat county; nor does he aver that the witnesses by whom he expects to support his allegations of cruelty reside in Klickitat county. His averments in regard to the convenience of witnesses are that the value of the land in Klickitat county will be an issue, and also that it will be an issue whether he competently, and with industry, managed the farm, and that the witnesses to these facts reside in Klickitat county.

In the briefs of counsel are quotations taken from the memorandum opinion of the trial court, filed at the time it denied the motion. We do not find the opinion in the record, but assuming that the quotations are correct, it appears that the court denied the motion on the ground that the relator----

'* * * failed to set up what the witnesses will testify to, and, in the absence of a

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