Gotthelf v. Merchants' Bank

WHITING, J.

Plaintiff brought this action in the circuit court of Minnehaha county, and defendant claims that, under section 101/ C. C. P., 'and the holding of this court in the case of Mullen v. Accident Ins. Co., 26 S. D. 402, 128 N. W. 483 , it had an absolute right to have the place of trial changed from that county to the county of Sanborn,' and that it took the proper steps to procure an order for such change from, the circuit court. The circuit court denied the motion for change of venue, and if is from such order of denial that this appeal was taken. It appears that, before answering and before the time for answering had expired, defendant served upon plaintiff’s attorney two papers, attached the one to the other; one an affidavit, dated nearly a month later than rhe date of service of summons and complaint, setting forth the fact that the defendant was a domestic corporation with its principal place of business in Sanborn county, the other a notice, of motion for an order changing the place of trial. The notice stated that it was 'based upon the attached affidavit. The affidavit contained a demand that the place of trial of said action be changed ■to the circuit court of Sanborn county. Counsel for plaintiff accepted service, of these papers. Thereafter, and upon the same date, counsel for plaintiff was presented with a written stipulation stipulating that the venue of said cause might be changed to San-born county. This stipulation he refused to sign. It was upon a showing- of all the above facts that the trial court refused to grant the change.

[1] There can be no question but that, if defendant had its principal place of business in Sanborn county at the time this action was commenced, and if it had taken proper steps to procure a change of place of trial, it was entitled to such change under the ruling of this court in the case, hereinbefore referred to. This is conceded by respondent, but she contends: (x) That the affidavit was insufficient in that it did not show that defendant’s chief place of business was in Sanborn county at the time the action was commenced; and, (2) because there was no written demand for change of venue made before the service of the notice of motion.

[2-3] Respondent contends that it was not enough to insert *262 such a demand' in the affidavit upon which the motion was -based; that, before appellant had any right to ask the court to grant the change of venue, it was incumbent upon it to make a demand in writing upon -respondent, thus giving counsel for respondent opportunity to- consent thereto. We think respondent is correct in her contentions. It might be urged -that, in the case of a corporation, there would be a strong -presumption that it had not changed its chief place of business during the period of something over three weeks, but- certainly -the appellant should not have left its rights to depend upon any s-uch presumption. In the case of Barbour v. Fidler, 141 N. W. 88 , this co-urt laid down a rule as to the proper procedure under section 102, C. C. P., being the section under which appellant sought the order changing the venue herein. This- section, as amended by chapter 177, Laws 1913, in so far as it applies to the question ¡before us, reads as follows: “If the county designated for that purpose in the complaint be not the county in which the defendant resides, the action may, notwithstanding, be tried therein -unless the defendant before the time for answering expires, demand in writing that the -trial he had in the county in which, he resides, and the place of trial be thereupon changed by the -consent of the parties or by the order of the court, as provided in this section” — and is identical with the wording of said section when 'before the court in the Barbour case. In that 'case this court said: “When a defendant believes the venue of the cause is not laid- in the proper county, and he wishes it changed to the proper county, it is his duty first to- make a written demand' upon the plaintiff to change it accordingly. If plaintiff consents to the change, he may indorse such consent on the demand, or sign a stipulation to that effect, and the court wil; direct the change without further proceeding. On the other hand, if plaintiff refuses to give such consent, it then -becomes incumbent upon 'the defendant, and 'before -the time for answering- expires, to make his application to the court.”

It follows from' the above that, when a defendant moves for a change of venue, the -affidavit upon- whioh h-is motion is made must show that he has already served upon plaintiff the written demand, and that -defendant, though given an 'opportunity to consent to such change in -one or the other of the method's provided by the statute, has neglected or refused to consent to such change *263 —the proof of the demand and its refusal, and not the demand itself, should have been in the affidavit. Vermont Cent. R. Co. v. Northern R. Co., 6 How. Prac. (N. Y.) 106; Elam v. Griffin, 19 Nev. 442 , 14 Pac. 582 .

The order appealed from -is affirmed.