Summary
In Spaulding v. Hoops, 49 Idaho 289, 287 P. 947 and Moscow Vets Club v. Bishop, 69 Idaho 350, 207 P.2d 503 the cases were transferred to the county of the residence of the defendant upon his demand.
Summary of this case from Anderson v. SpringerOpinion
No. 5489.
May 1, 1930.
APPEAL from order of Honorable Wm. A. Babcock, Judge of the Eleventh Judicial District, remanding the above-entitled action to the District Court of the Ninth Judicial District, Madison County, Hon. C.J. Taylor, Judge, for trial.
Plaintiff filed a motion for a change of venue. Granted. Affirmed.
Hodgin Hodgin, for Appellant.
Convenience of witnesses alone is not sufficient grounds for removal of cause of action; but a showing must be made to the satisfaction of the court that the ends of justice will be served as well as the convenience of witnesses. ( Schilling v. Buhne, 139 Cal. 611, 73 P. 431; Brown v. Tamarack Custer Consolidated Min. Co., 37 Idaho 650, 218 Pac. 363; Rains v. Diamond Match Co., 171 Cal. 326, 153 P. 239; 40 Cyc., pp. 137-141, and authorities cited; 2 Bancroft's Code Practice Pleading, par. 1008, p. 1449, and authorities cited, par. 1030, p. 1476, and authorities cited; Scott v. Stuart, 190 Cal. 526, 213 P. 947; Reavis v. Cowell, 56 Cal. 588; City of Stockton v. Ellingwood, 78 Cal.App. 117, 248 P. 272; C. S., sec. 6666).
The burden is upon the moving party to show that a change is required because of the convenience of witnesses and to promote the ends of justice. (2 Bancroft's Code Practice Remedies, p. 1456, par. 1014; Carr v. Stern, 17 Cal.App. 397, 120 Pac. 35; City of Stockton v. Ellingwood, supra.)
Lewis A. Lee, for Respondent.
The granting or refusing to grant a change of place of trial is addressed to the sound discretion of the trial court, and an order granting or refusing to grant a change of place of trial will not be disturbed on appeal unless there has been a clear abuse of discretion. ( Ondes v. Bunker Hill etc. Min. Con. Co., 40 Idaho 186, 232 P. 578; Lessman v. Anschustigui, 37 Idaho 127, 215 P. 460; Gibbert v. Washington Water Power Co., 19 Idaho 637, 115 P. 924.)
Where the material witnesses for plaintiff cannot under Code Civ. Proc., sec. 1899, be compelled to attend as witnesses at the trial of an action if tried in the county where pending, but can be compelled to attend if the place of trial is changed to another county, and such witnesses are the only material witnesses as disclosed on the hearing of an application for the change of place of trial, the ends of justice will be promoted by a change, and it is error to refuse to change place of trial. ( Carr v. Stern, 17 Cal.App. 397, 120 P. 35; Rains v. Diamond Match Co., 171 Cal. 326, 153 Pac. 239.)
Where the occurrences out of which an action arose happened in another county, and the greater number of material witnesses resided there, the venue should be changed. ( Wallace v. Manning, 130 App. Div. 894, 114 N.Y. Supp. 972; Adams Laundry Machinery Co. v. Prunier, 142 App. Div. 913, 126 N.Y. Supp. 867; Republic Bag Paper Co. v. Hoffman, 168 App. Div. 938, 153 N.Y. Supp. 119.)
Plaintiff was injured in a collision with one of defendant's trucks on the Yellowstone Highway in Madison county. In answer to his complaint seeking damages filed in the district court of Madison county, defendant moved for a change of venue to Twin Falls county on the ground that he, the defendant, was a resident of Twin Falls county. The district court, sitting for Madison county, ordered the cause removed.
Thereafter the plaintiff filed a motion in the district court of Twin Falls county asking that the cause be sent back to Madison county on the ground that the convenience of the witnesses and the ends of justice warranted such removal. The motion was granted and the cause ordered removed to Madison county. This appeal is from that order.
The granting or refusal of a change of venue under C. S. 6666 is within the discretion of the trial court and an order changing the place of trial or refusing to change it will not be disturbed in the absence of a manifest abuse of that discretion. ( Ondes v. Bunker Hill etc. Min. etc. Co., 40 Idaho 186, 232 P. 578; Lessman v. Anschustigui, 37 Idaho 127, 215 P. 460; Gibbert v. Washington Water Power Co., 19 Idaho 637, 115 P. 924.)
C. S. 6664 provides that an action of this kind shall be tried in the county where the defendant resides. But defendant's right in this respect must give way when it is made to appear that the ends of justice and the convenience of witnesses would be promoted by a change of venue. (C. S. 6666.)
It appears from plaintiff's supporting affidavit that all of the matters complained of took place in Madison county; that he has about thirteen witnesses each of whom will testify to some material fact, all residing in Madison county; that six of his witnesses are business or professional men whose occupation would make it difficult for them to leave Madison county for any extended period of time; that none of his witnesses can be compelled to attend if the action is tried in Twin Falls county, it being more than 175 miles from their respective places of residence: that plaintiff is not a man of means and could not afford to pay the expense of witnesses in Twin Falls county even if they could be induced to attend there.
Defendant's affidavit in opposition to the change alleges that he has four witnesses, one of whom would represent the State Highway Department, two residing in Twin Falls and the fourth in Rupert. The testimony of two of the witnesses, as set forth in the affidavit, would be cumulative.
At the most, on the showing made, defendant would have three material witnesses. Plaintiff would have at least seven. While, on a motion of this kind, the number of witnesses is not decisive, where the greater number reside in the county where the cause of action arose, upon proper motion, the action should be removed to that county if the ends of justice would be thereby promoted. ( Postel v. Weinhagen, 86 Wis. 302, 56 N.W. 913; Security Investment Co. v. Gifford, 179 Cal. 277, 176 P. 444; Sheffell v. Miller Transfer Co., 187 App. Div.. 860, 176 N.Y. Supp 383; Schwartz v. Wilbur, 211 App. Div. 806, 206 N.Y. Supp. 852.)
We are satisfied that the convenience of the witnesses would be served by the removal of the cause to Madison county.
Likewise the ends of justice would be promoted. The accident occurred in Madison county. It would seem reasonable to assume that the witnesses residing in that county could testify best concerning the matters at issue. Plaintiff's witnesses cannot be compelled to attend if the cause is tried in Twin Falls county. (C. S., sec. 7985, as amended 1929 Sess. Laws, p. 50.) It is true that defendant's witnesses who reside in Twin Falls or Rupert likewise cannot be compelled to attend if the trial is held in Madison county but to require the taking of their testimony by deposition would be much less burdensome than to impose such burden upon the plaintiff with his greater number of witnesses. ( Carr v. Stern, 17 Cal.App. 397, 120 P. 35; Cole v. Ocean Acc. etc. Corp., 179 App. Div. 442, 165 N.Y. Supp. 991; Postel v. Weinhagen, supra.)
The order is affirmed. Costs to respondent.
Budge, Lee, Varian and McNaughton, JJ., concur.