Stocks v. Stocks
| Decision Date | 24 July 1947 |
| Docket Number | 3493. |
| Citation | 183 P.2d 617,64 Nev. 431 |
| Parties | STOCKS v. STOCKS. |
| Court | Nevada Supreme Court |
Appeal from District Court, Seventh District, White Pine County Harry M. Watson, Judge.
Action by Louise Stocks, as guardian of the person and estate of Harrison S. Stocks, Jr., an incompetent, against Harrison S Stocks, to recover a judgment for the expense of future medical treatment of incompetent son of the parties and for reimbursement for plaintiff's outlays for past support maintenance, and medical treatment of the incompetent. From an order granting defendant's demand and motion to change the place of trial to county of his residence, plaintiff appeals.
Order affirmed.
Robert R. Gill, of Ely, for appellant.
Taylor & Gubler, of Las Vegas, and C. A. Eddy, of Ely, for respondent.
This is an appeal from an order made by the Seventh Judicial District Court of the State of Nevada, in and for the County of White Pine, granting defendant's demand and motion to change the place of trial of said action from White Pine County to Clark County. The motion and order were based upon the fact of defendant's residence in the latter county, which fact is conceded. The motion and demand were timely made and noticed, and the order changing the place of trial was made after a hearing of such motion as well as plaintiff's objection thereto. The grounds of the objection were that the convenience of witnesses and the ends of justice would be promoted by retaining the cause in White Pine County for trial, and the objection was supported by plaintiff's affidavit reading as follows:
Plaintiff's complaint in the action, filed March 17, 1947, alleged that on March 13, 1947, she had been appointed guardian of Harrison S. Stocks, Jr., an incompetent, aged 27 years, the son of plaintiff and defendant; that said incompetent was subject to epileptic attacks to which he had been subject since the age of twelve and which still continued with great frequency; that his custody had been awarded to plaintiff in 1928 by the Superior Court of California in and for Los Angeles County under her cross complaint for separate maintenance in a divorce action instituted by the defendant herein; that in 1938 she had sought, by an action in Clark County, Nevada, to compel defendant to pay his arrears under the California decree, for the support of herself and said incompetent, amounting to $10,720, with interest, costs, etc., which resulted in a settlement whereunder she accepted $5,000 plus $284 expenses, out of which she had to pay her own costs and attorney fees; that the residue of said fund, plus her own earnings, amounting in all to some $7,000, had been consumed in living expenses of herself and her son and in medical expense for the latter including treatments at Montreal, Canada, and the Ortman Clinic in Canistota, South Dakota; that she is now without funds and that she and her son are likely to become public charges within 'the next few months,' while the defendant, as she is informed and believes, is a man of substantial means; that her son is also in need of treatment, operative or otherwise, for hemorrhoids, and in need of an operation to correct an eyelid condition caused by a burn in childhood during an epileptic seizure; that defendant has rejected various suggestions made by her for the child's treatment and the expense thereof, but stated in November, 1946 'that he would let the court decide his obligation, and that if his son were placed in a proper institution he would gladly assume his financial obligation.' The complaint sought a judgment for $1,800 for treatment for one year of the son's epilepsy, $1,000 for other treatment for the son, and $7,000 for herself as reinbursement of her outlays for the support, maintenance and medical treatment of the incompetent.
The court's order changing the place of trial to Clark County, the place of defendant's residence, over the objections of plaintiff, and what may be deemed for the purpose of this appeal, its order denying plaintiff's counter-motion to retain jurisdiction for the convenience of witnesses and the promotion of justice, were governed by the provisions of Sections 8571 and 8572 Nevada Compiled Laws, reading as follows:
'§ 8571. Residence of Parties Determines Place of Trial.--Change of Place. § 72. In all other cases, the action shall be tried in the county in which the defendants, or any one of them, may reside at the commencement of the action; or, if none of the defendants reside in the state, or if residing in the state, the county in which they so reside be unknown to the plaintiff, the same may be tried in any county which the plaintiff may designate in his complaint; and if any defendant, or defendants, may be about to depart from the state, such action may be tried in any county where either of the parties may reside or service be had, subject, however, to the power of the court to change the place of trial, as provided in this act.
'§ 8572. Change of Venue.--Grounds. § 73. 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, and the place of trial be thereupon changed by consent of the parties, or by order of the court, as provided in this section. The court may, on motion, change the place of trial in the following cases:
'1. When the county designated in the complaint is not the proper county.
'2. When there is reason to believe that an impartial trial cannot be had therein.
Respondent maintains that under the mandatory provisions of the first...
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