Opinion
No. 7,868.
Submitted February 27, 1939.
Decided March 7, 1939.
Change of Venue — Convenience of Witnesses — When Denial of Motion not Error. Change of Venue — Convenience of Witnesses — Number of Witnesses Convenienced and Inconvenienced About Equally Divided — Refusal of Motion not Error. 1. Where in a divorce proceeding application for change of venue was made on the ground of convenience of witnesses, and the affidavits filed in support of and in opposition to the motion showed that the number of witnesses to be accommodated were about evenly balanced, nine of movent's witnesses residing in the county to which a change was sought, and eleven of plaintiff's witnesses having their domicile in the county in which the action was brought, the refusal of the motion may not be held an abuse of discretion. Same — Denial of Motion not Error Where Depositions of Witnesses as to Non-vital Matters Sufficient. 2. Where the testimony of two physicians residing in the county to which a divorce action was sought to be removed for trial did not appear to be so vital that it could not be submitted by way of deposition, the fact that, as alleged in the application for change of place of trial, they could not leave their practice to testify in the court of the county in which the action was brought without inconvenience and loss to them was not a compelling reason for granting the motion for change.
Appeal from District Court, Beaverhead County, in the Fifth Judicial District; T.E. Downey, a Judge of the Second District, presiding.
Messrs. Gilbert, Gilbert McFadden, for Appellant, submitted a brief; Mr. T.E. Gilbert argued the cause orally.
Mr. John Collins, for Respondent, submitted a brief.
1. See 25 Cal. Jur. 884.
Plaintiff commenced this action in Beaverhead county to obtain a divorce on the ground of cruelty and adultery. Defendant by answer and cross-complaint denied the material allegations of the complaint and asked for a divorce from plaintiff and for alimony, and affirmatively alleged that plaintiff had been guilty of cruelty towards her and of adultery. After issues were joined by a reply, defendant filed a motion for change of venue to Silver Bow county which was denied. This appeal is from the order denying the motion.
The motion was based upon the ground of convenience of [1, 2] witnesses under section 9098, Revised Codes. It was supported by affidavits showing that defendant had resided in Butte since November, 1937, and that she has nine witnesses, all of whom reside in Silver Bow county. The affidavit sets out generally the character of the testimony which each witness will give, and that because they live in Silver Bow county the trial should take place there.
Plaintiff, in opposition to the motion, made affidavit that he has eleven witnesses all but one of whom reside in Dillon, and the one not residing in Dillon resides on a ranch south of Dillon. He likewise sets out generally what facts each witness will testify to.
From the affidavits it is thus seen that the question of convenience in the place of trial is about evenly balanced. The court did not abuse its discretion in denying the motion. Defendant relies upon the fact that two of her witnesses are physicians who cannot leave their practice to appear in Dillon as witnesses without inconvenience and loss to them. Their testimony, however, does not appear to be so vital that it could not be submitted with the same effectiveness in the form of depositions.
The order appealed from is affirmed.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES MORRIS, STEWART and ERICKSON concur.