Opinion
No. 28,968.
March 11, 1932.
Venue — remand.
Record examined and found to sustain the court's order remanding the case to Aitkin county for the convenience of witnesses and to promote the ends of justice.
Alternative writ of mandamus upon the relation of H.A. Tax to compel the district court for Hennepin county and the Honorable Paul W. Guilford, judge thereof, to vacate an order remanding for trial to the district court for Aitkin county, on the ground of convenience of witnesses, an action instituted in that county against relator by one West and removed, upon demand of relator, to Hennepin county, his place of residence. Writ discharged.
Cobb, Hoke, Benson, Krause Faegre, for relator.
Samuel A. Anderson and Louis Hallum, for respondent.
Carl West brought suit against H.A. Tax in Aitkin county to recover for personal injuries and damages to his car suffered in an automobile accident which occurred in that county. By seasonable demand Tax removed the case to Hennepin county, his place of residence. Issue was joined, and West moved to remand the case to Aitkin county for the convenience of witnesses. The district court of Hennepin county granted the motion, and the relator by proceedings in mandamus seeks to review and to vacate the order remanding.
Relator claims that the moving papers on which the court's remanding order is based are defective in not stating as a basis for relief that the ends of justice would be promoted by the change of venue sought. The motion to remand was based upon an accompanying affidavit made a part of the moving papers. A subsequent affidavit filed with the court stated that the ends of justice would be best served by remanding the case to Aitkin county. Criticism is also made of the form of the affidavit showing what the plaintiff's witnesses are expected to testify to in that it does not declare that plaintiff intends to call such witnesses. The affidavit states the character of the testimony which the witnesses are able to give and that they are necessary and material and that without them plaintiff cannot safely go to trial. Other matters are stated in the affidavit which tend to show that the ends of justice will be promoted by a trial in Aitkin county. It would be an extremely technical construction of these moving papers which would hold them insufficient to sustain the court's discretion in ordering the case remanded to Aitkin county. The court's order is amply sustained.
The alternative writ of mandamus is discharged and the case remanded.