Clark v. Cleveland

Birdzell, J.

This is an appeal from an order in tbe county court of Wells county denying tbe defendants’ motion for a change of venue. Tbe plaintiff brought action against tbe defendants for rent due and unpaid under a lease prior to tbe abandonment of tbe premises and for additional rents to accrue in tbe future but which are automatically matured upon tbe violation of tbe lease as alleged in tbe complaint. Tbe summons was served on both defendants in Wilton, McLean county, on tbe 12th day of June, 1930. Tbe defendants later moved for a change of place of trial to McLean county supporting tbe motion by affidavits. Tbe affidavits showed that tbe defendants were residents of McLean county at tbe time of tbe service of summons upon them.

*461 The motion was resisted by the plaintiff who likewise submitted affidavits which did not take issue with the statements in the defendants’ affidavits as to their place of residence at the time of the service, but merely showing that the convenience of witnesses might be subserved by a trial in the county of Wells and at least tacitly admitting that while the defendants had been residents of Harvey in Wells county they no longer resided there and had not resided there later than June 5th.

Upon this showing it was clearly error to deny the defendants’ motion for change of place of trial. In an action of this character the defendant has an absolute right to change to the county of his residence if he seasonably makes demand therefor. Comp. Laws 1913, §§ 7417 and 7418; Hinsey v. Alcox, 38 N. D. 52 , 164 N. W. 296 ; Fargo Silo Co. v. Pioneer Stock Co. 42 N. D. 48 , 171 N. W. 849 ; State v. Bloom, 49 N. D. 224 , 190 N. W. 812 ; Thorson v. Weimer, 59 N. D. 457 , 230 N. W. 596, 599 .

The right being absolute the order denying the motion cannot be supported on the ground that trial in Wells county will subserve the convenience of witnesses. The proper practice in such case is to make a motion in the court in which the defendants have the right to have the case heard. When such a motion is there made it invokes the discretion of the court to transfer the case to some other county on the grounds of prejudice or to subserve the convenience of witnesses and promote the ends of justice. Veeder v. Baker, 83 N. Y. 156 ; Ivanusch v. Great Northern R. Co. 26 S. D. 158, 128 N. W. 336 ; McSherry v. Pennsylvania Consol. Gold-Min. Co. 97 Cal. 637 , 32 Pac. 711 .

The order appealed from must be reversed. It is so ordered.

Christianson, Oh. J., and Nuessle, Burr and Burke, JJ., concur.