Sweeney v. American National Bank

• Decision Date: 27 April 1943
• Docket Number: 7064
• Citation: 136 P.2d 973,64 Idaho 695
• Parties: D. J. SWEENEY, Appellant, v. AMERICAN NATIONAL BANK and F. W. HANMER, Administrator, Respondents
• Court: Idaho Supreme Court

136 P.2d 973

64 Idaho 695

D. J. SWEENEY, Appellant, v. AMERICAN NATIONAL BANK and F. W. HANMER, Administrator, Respondents

No. 7064

Supreme Court of Idaho

April 27, 1943

VENUE CHANGE OF-APPEAL AND ERROR-APPEALABLE ORDER.

1. An order vacating a default is not an "appealable order." (I.C.A., sec. 11-201.)

2. The Supreme Court has no jurisdiction of separate appeals from non-appealable orders made before entry of final judgment.

3. An application for change of venue on ground of convenience of witnesses and ends of justice need not be made at the commencement of the action, but the application may be made within a reasonable time after appearance. (I.C.A., sec 5-405; 5-406, subd. 3.)

4. What is a reasonable time after appearance within which application for change of venue on ground of convenience of witnesses and ends of justice may be made depends on attendant circumstances. (I.C.A., sec. 5-406, subd. 3.)

5. An application for change of venue on ground of convenience of witnesses and ends of justice is addressed to sound discretion of trial court. (I.C.A., sec. 5-406, subd. 3.)

6. Court's order granting or refusing to grant a change of venue on ground of convenience of witnesses and ends of justice will not be disturbed on appeal unless there has been a clear abuse of discretion. (I.C.A., sec. 5-406, subd. 3.)

7. Where, at time of filing of original action in Bonneville county individual defendants resided in Lemhi county and principal place of business of defendant bank was in Bonneville county where plaintiff also resided, but as result of first appeal the defendant bank ceased to have any interest in the subject matter and Lemhi county was place where building contract involved was made and was to be performed and property concerning which litigation arose was located in that county, granting change of venue to Lemhi county on ground of convenience of witnesses and ends of justice was not an abuse of discretion. (I.C.A., sec. 5-406 subd. 3.)

Appeal from the District Court of the Ninth Judicial District of the State of Idaho, in and for the County of Bonneville.

Hon. C J. Taylor, Judge.

Appeal from order vacating default judgment and from order granting change of venue. Sustained.

Order sustained. Costs awarded to respondents.

Alvin Denman for appellant.

Sec. 5-405, I. C. A., contemplates that at all times while there is a motion pending for change of place of trial on the ground that the action was not commenced in the proper county, the moving party must have either a demurrer or answer on file to save him from default. (Morebeck v. Bradford Kennedy Co., 19 Idaho 94.)

An order denying a change of venue has all the characteristics of a final judgment. (Citizens' St. Ry. v. Shepherd, (Ind.) 59 N.E. 352; Karst v. Seller, (Cal.) 188 P. 300.)

An order refusing a change of venue is appealable. (11-201, I. C. A.; Karst v. Seller, supra.)

No appeal having been taken from the order denying the original motion for change of venue, the order denying the motion is res adjudicata, and binding upon the decedent's administrator. (South Boise Water Co. v. McDonald, 50 Idaho 414; 34 C. J. 1038; 1 C. J. 252; 1 Am. Jur. 107; 34 C. J. 1038; Shephard v. Coeur d' Alene L. Co., 16 Idaho 296.)

Fred H. Snook and E. H. Casterlin for respondents.

Supreme Court has no jurisdiction of separate appeals from nonappealable orders made before entry of judgment. ( Aumock v. Kilborn, 52 Idaho 438, 439.)

The entry of a motion for change of venue intercepts all further proceedings and makes them a nullity. (Brady v. Times-Mirror Company, (Cal.) 39 P. 209; Griffin & Skelly Co. v. Magnolia etc. Co., (Cal.) 40 P. 495.)

An application for change of venue is addressed to the sound discretion of the court, and the decision reached will not be reversed on appeal unless the showing is such to convince the appellate court that the trial court abused such discretion. (Spaulding v. Hoops, 49 Idaho 289, 287 P. 947; Finnell v. Finnell, 59 Idaho 152, 81 P.2d 401.)

BUDGE, J. Holden, C.J., Ailshie, Givens, and Dunlap, JJ., concur.

OPINION

BUDGE, J.

Appellant brought this action originally against the American National Bank, Charles F. Hanmer, and Mata Hanmer, his wife, in Bonneville County, to obtain a judgment clarifying his rights under a written building contract, and to obtain a money judgment against the Hanmers for services rendered and labor and materials furnished pursuant to said contract. To the complaint the Hanmers filed a demurrer, together with a motion, demand and affidavit of merits for change of venue.

The trial court entered an order to the effect that (1) the complaint stated "but one cause of action, to-wit, * * * for a declaratory judgment" and (2) all allegations of an oral contract and of a balance due, "in so far as they go beyond what may be necessary to show the existence of a bona fide conflict," were to be disregarded and (3) that the motion for change of venue be denied and the demurrer overruled.

An answer was then filed by all the defendants to the issues respecting declaratory judgment. The cause was heard and judgment entered; from which judgment Sweeney, appellant here, appealed.

The judgment was reversed with instructions to allow defendants to amend their answer, putting in issue the amount due and to grant a trial of that issue by jury, unless waived, to determine the amount due. (Sweeney v. American National Bank, 62 Idaho 544, 115 P.2d 109.)

On the first appeal it was held that the complaint tendered two issues, first, the correct construction of the contract which involved all of the parties named herein, and which issue was fully determined; second, claim for damages which involved only the Hanmers and appellant, and was remanded for trial on that issue.

On August 20, 1941, Charles F. Hanmer died, and proper proceedings were had in the Probate Court of Lemhi County appointing F. W. Hanmer administrator of his estate.

The bank filed its answer disclaiming all interest in the present cause of action and property involved, the debt having been paid, and the questioned mortgage satisfied of record, all of which is made clear by a written stipulation entered into by the attorneys for the respective parties on March 27, 1943, wherein it is recited (1) "that said defendant-respondent, American National Bank, has no interest in this appeal * * * and has filed no brief or made other appearance herein;" (2) "that said plaintiff-appellant, D. J. Sweeney, hereby waives all rights to a judgment for costs against said American National Bank, on this appeal." That is to say, all controversies between American National Bank, Sweeney, and the Hanmers had been fully determined and settled as between the parties in so far as the American National Bank is concerned, leaving matters here involved between appellant and the Hanmers, or the latter's administrator.

When the case went back with instructions to proceed on the second issue, Hanmer's administrator, joined by Mata Hanmer, widow of Charles F. Hanmer, deceased, filed a demurrer to the complaint and to the supplemental complaint reviving the action and also filed a demand, motion and affidavit for change of venue.

Appellant, on May 8, 1942, moved the court for and obtained an order overruling the demurrer to plaintiff's complaint and supplemental complaint and allowing respondents ten days in which to answer; said demurrer was overruled upon an ex parte proceeding upon the ground and for the reason that at the time of the filing of the demurrer respondents failed to file in the trial court a brief of points and authorities in support of said demurrer. No action was taken by the court upon the motion for change of venue.

On May 19, 1942, the ten days having elapsed, appellant applied to the clerk of the court for and obtained an entry of respondents' default for failure to answer. Respondents having no notice of the overruling of the demurrer or of entry of default, filed their amended answer and cross-complaint.

On March 30, 1942, said motion for change of venue was renewed upon the following grounds, to-wit: (1) that the county designated in the complaint is not the proper county in which the action should be instituted; (2) that these defendants are now, and were at the commencement of this action, bona fide residents of Lemhi County; (3) that the convenience of witnesses and the ends of justice would be promoted by the change; said motion was based upon the pleadings, papers, records and files in the action. On March 30, 1942, administrator Hanmer and Mata Hanmer filed an affidavit in support of their motion for change of venue.

On June 26, 1942, on motion of the administrator and Mata Hanmer, the trial court set aside the default and vacated the order overruling the demurrer. On August 7, 1942, the motion for change of venue was granted. This appeal is from that part of the order of June 26, 1942, setting aside the default and from that order of August 7, 1942, granting the change of venue for trial of the remaining issue only between appellant and respondents.

During the pendency of the present appeal, Mata Hanmer, widow of Charles F. Hanmer, died; by stipulation of counsel in open court, F. W. Hanmer was substituted as administrator, to represent Mata Hanmer, deceased. The title of the action will be amended in this respect.

Directing our attention to the first assignment of error, namely, that the court erred in setting aside the default of the Hanmers Sec. 11-201, I. C. A. enumerates appealable orders. An order vacating a default is not included. This court has no jurisdiction of separate appeals from non-appealable orders made before entry of final judgment. (Aumock v. Kilborn, 52 Idaho 438 at 438-439, 16 P.2d 975.)...