Opinion
No. 7,564.
Submitted December 19, 1936.
Decided December 29, 1936.
Venue — Change of Venue — Discretion Lodged in District Court — Appeal — Questions not Reviewable on Appeal from Change of Venue Order. Venue — Change of Venue — Matter in Discretion of Trial Court — When Only Order will be Set Aside. 1. A motion for change of venue is addressed to the discretion of the district court, and its order denying a change will not be set aside on appeal in the absence of abuse of its discretion. Same — Questions not Reviewable on Appeal from Order Denying Motion for Change of Venue. 2. On appeal from an order denying a change of venue the supreme court will not determine whether or not the complaint states a cause of action, or whether the lower court had jurisdiction.
Appeal from District Court, Beaverhead County; R.E. McHugh, Judge.
Mr. Jeremiah J. Lynch and Mr. J.E. Healy, for Appellants, submitted an original and a reply brief; Mr. Lynch argued the cause orally.
Mr. Henry G. Rodgers, Mr. W.J. Cushing and Mr. John Collins, for Respondents, submitted a brief; Mr. Collins argued the cause orally.
This is an appeal from an order of the district court of Beaverhead county denying a motion for a change of venue. The motion is based upon affidavits of one of the defendants, in which he recites at length certain inconveniences to the defendants' witnesses that would arise if the case is tried in Beaverhead county, and requests therein that the case be transferred to Silver Bow county. The plaintiff filed a counter-affidavit. The district court, after duly considering the affidavits, denied the motion for change, and the case comes here by appeal from the order. No other issue is presented.
The district court having exercised its discretion, we should [1, 2] not overrule it unless it had abused that discretion. It clearly appears that it has not. The matter is set at rest by the decision in the case of In re Davis' Estate, 11 Mont. 1, 23, 27 P. 342, 346, wherein the court said: "An order refusing the application for a change of venue will not be set aside, in the absence of an abuse of judicial discretion." Earlier cases are cited, but the rule is so well settled that we feel it is unnecessary to cite later cases.
Counsel for appellants argue at considerable length that the complaint did not state facts sufficient to state a cause of action and, therefore, the district court had no jurisdiction, and also at length the merits of the case. The merits of the case certainly were not subject to argument on this motion for a change of venue, and the argument that the court did not have jurisdiction is not subject to consideration at this time; but if it were, a brief examination of the complaint satisfies us that a sufficient statement is made by the complaint to invest this court with jurisdiction.
The order appealed from is affirmed.
ASSOCIATE JUSTICES MATTHEWS, STEWART, ANDERSON and MORRIS concur.