Woods Gold Min. Co. v. Royston

• Citation: 46 Colo. 191,103 P. 291
• Parties: WOODS GOLD MINING CO. v. ROYSTON.
• Decision Date: 07 June 1909
• Court: Supreme Court of Colorado

103 P. 291

46 Colo. 191

WOODS GOLD MINING CO. v. ROYSTON.

Supreme Court of Colorado

June 7, 1909

Appeal from District Court, Mesa County; Theron Stevens, Judge.

Action by W. H. Royston against the Woods Gold Mining Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

G. K. Hartenstein, for appellant.

Wheeler & Weiser, for appellee.

CAMPBELL J.

This is an action by the plaintiff, Royston, against the defendant corporation to recover the balance due for services which he performed for the defendant under a contract between them which was made in Arapahoe county, and was to be performed and was performed, in Gunnison county, Colo. Plaintiff resides in Mesa county, and this action was begun in the county court of Mesa county, and the summons was served upon defendant in Gunnison county. The defendant is a corporation organized under the laws of this state, and by its certificate of incorporation its principal office was fixed and required to be kept at Buena Vista, Chaffee county, and its principal business was to be carried on in Gunnison county, Colo. The plaintiff had judgment in the county court and also on defendant's appeal in the district court, and defendant has brought the case here by appeal.

Seasonably both in the county and district courts defendant moved for a change of the place of trial to Chaffee county on the ground that Mesa county, the county named in the complaint, and in the county court of which the action was brought, was not and Chaffee county, its domicile, was the proper county for the place of trial. Section 27, Mills' Ann. Code, governs. It provides that such actions 'shall be tried in the county in which the defendants, or any of them may reside at the commencement of the action, or in the county where the plaintiff resides when service is made on the defendant in such county. * * * Actions upon contracts may be tried in the county in which the contract was to be performed.' While plaintiff resides in Mesa county service was not made on defendant in that county, but in Gunnison county; and, though the contract was to be performed in Gunnison county, the action was not begun there. Manifestly, therefore, the action was not begun in the proper county for the trial, and on defendant's request, under the plain language of this section, should have been transferred for trial, and tried in the appropriate court of the county in which defendant resided at the commencement of the action.

Plaintiff however, says the evidence was conflicting as to the county of defendant's residence, and, since the court denied its motion to change the place of trial, it must have found that defendant did not reside in Chaffee county, and we cannot interfere with this finding. Defendant's certificate of incorporation designates Buena Vista, in Chaffee county, as the place where its principal office shall be kept. This fixes its legal residence or domicile in Chaffee county within the meaning of section 27, Mills' Ann. Code. Defendant certainly had the right under our statute to select its own legal residence, and it did so. In addition to defendant's certificate of incorporation, which designates its legal residence in Chaffee county, are the affidavits of a number of its officers and stockholders that it kept its principal office at Buena Vista, in Chaffee county, and there held its annual meetings and transacted its important business, although it had a branch office in the state of Missouri, and also kept an office in Gunnison county, where its principal business was carried on. The only evidence by which this showing by ...