Conway v. Fabian

MR. CHIEF JUSTICE SANDS delivered the opinion of the court.

This is an appeal from an order of the district court of. Beaverhead county denying a motion for a change of venue.

*575 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 ease comes here by appeal from the order. No other issue is presented.

The district court having exercised its discretion, we should 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 Pac. 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 suffieiént 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.