Kramer v. Heins

Bruce, T.

(after stating the facts as above). Counsel for respondent suggests that the order refusing to dismiss the appeal from the county court may not be an appealable order. It is not necessary, however, for us to consider this question, as there is also an appeal from the order granting the change of venue, and that such an order “involves the merits of the action,” and is therefore appealable under the provisions of § 7841 of the Compiled Laws of 1913, is well established. See Robertson Lumber Co. v. Jones, 13 N. D. 112 , 99 N. W. 1082 . The questions raised by both appeals are also substantially the same.

The next point urged is that the trial court erred in granting petitioner’s motion to continue the case over the January, 1915, term of the district court.

*511 Counsel for appellants calls attention to § 8615 of the Compiled Laws of 1913, which provides that: “Upon the delivery of such transcript and payment of the clerk’s fee, the appeal must be docketed in the district court and placed on the calendar of causes for trial according to the date on which it was perfected and without a notice of trial or note of issue at the next term convening, not less than ten days after the taking of the appeal, and must be disposed of • accordingly during the term, unless sooner disposed of in pursuance of the provisions of the next section.”

The contention of counsel is that under this section the case should have been brought on' for trial at the next term of the district court j namely, the January, 1915, term, and that the court erred in grant’ ing the motion of the petitioner for a continuance over the objection of the respondents and also erred in denying the respondents’ (appeh lants herein) motion to dismiss the appeal from the county court.

We cannot believe, however, that this section can be anything more than directory. Surely it was not intended the parties should lose valuable legal rights merely because of the sickness of the counsel or of witnesses and the inability to prepare for trial at the next term of the court. In the case at bar there was a valid reason for a continuance. There is no doubt that counsel for the petitioner and respondent herein was seriously ill. If the construction contended for by counsel applies, an epidemic among the jurymen or the sickness of the witnesses or of the trial judge, which would render the trial at the term impossible, would have had the same effect. It will be noticed indeed that the statute does not require the case to be tried at the next term. It merely provides that it must “be docketed in the district court and placed on the calendar of causes for trial according to the date on which it is perfected, and must be disposed of accordingly during the term.” In other words the case must be docketed at the first term and disposed of at that term the same as the other actions on that calendar. There is no question of the right to continue other cases upon the calendar for good causes shown, and there is no contention, and can be no contention, that such an appeal was to be given preference over any other cases, but merely to be docketed in its order, and there can be no contention that if the calendar had been crowded and it was impossible for the *512 judge to dispose of all of the cases at the term, that he would have had the right to continue the balance of the cases over.

The next point urged is that the trial court erred in granting the •change of venue from the county of Wells to the county of Ward. It is argued that the case had been in the district court for over nine months at the time of the application, and it is urged that a change of venue should not be granted after a case has been continued, unless it is shown that the grounds upon which the application is made were not known prior to the continuance.

We think, however, there is no merit in this contention, in so far at least as the case at bar is concerned.

It is well established that whether a change of venue shall be granted •or not is a matter which rests in the sound discretion of the trial judge. Aylmer v. Adams, 30 N. D. 514 , 153 N. W. 419 ; Booren v. McWilliams, 33 N. D. 339 , 157 N. W. 117 . The question involved is not whether the respondent had an absolute right to such a change, but whether the trial judge abused his discretion in allowing it. Counsel cites the Iowa cases of McCracken v. Webb, 36 Iowa, 551 ; Fitch v. Billings, 22 Iowa, 228 . These cases, however, were decided under § 2804 of the laws of Iowa, Revision of 1860, which expressly provided that an application for a'change of venue should not “be allowed after •a continuance except for a cause not known to the affiant before such continuance.” He also cites the Minnesota case of Waldron v. St. Paul, 33 Minn. 87 , 22 N. W. 4 , but this case was one in which the discretion of the trial court was affirmed in denying a change, and where the rule of court provided that a change should not be granted where the benefit of a term would be lost except on certain conditions, and in which case it seemed apparent that such term would have been lost. He also cites the Wisconsin case-of Schafer v. Shaw, 87 Wis. 185 , 58 N. W. 240 , which was also handed down under a statute similar to that of Iowa before mentioned, and in that case also the discretion of the judge wen affirmed. The cases of Pearkes v. Freer, 9 Cal. 642 , and Jones v. Frost, 28 Cal. 245 , also -were not cases of discretion or prejudice, but cases which involved the general right of a trial in the ■county, and which right it has been generally held may be waived by answering to the merits. Nor do we find in the record any proof that a term of court would be lost by a change to Ward county.

*513 Counsel next complains that the case was not removed from Wells county to an adjoining county, but to Minot in Ward county. We have no doubt that in all of such cases the court should consult the convenience of witnesses and choose a place of trial which shall be reasonably accessible, and seek in every way to render the trial as inexpensive as possible. We have no proof, however, that this was not done in the case at bar. Minot is on the same line of railroad as Fessenden, and is a place which is readily accessible. It was evidently intended in North Dakota, no matter what may be the rule in other states, that the convenience of parties and the accessibility of the places of trial should be the subjects of consideration rather than the geographical location of the places. Nowhere in the Code is it provided that the place of trial shall be in an “adjoining” county, and we are not prepared to read the word into the Code. The statute indeed merely provides that “the court may change the place of trial,” and nothing is said as to the geographical location of that place. See Comp. Laws 1913, § 7118.

The judgment of the District. Court is affirmed.