Shirley v. Nodine

Hollister, C. J., delivered tbe opinion; Clark, J., and Priokett, J., concurring. This is an action commenced by tbe respondents against tbe appellants in tbe district court of Oneida county; and at tbe June term, 1877, thereof, tbe appellants filed tbeir motion for a change of venue to tbe county of Ada, on tbe ground that tbe convenience of witnesses and tbe ends of justice would thereby be promoted. Tbe affidavit of Mr. Nodine, which was filed in support of tbe motion, after stating tbe facts which are expected to be proved and tbe names of witnesses, shows that all tbe witnesses reside in tbe state of Oregon, and also if the trial of tbe action can be changed to Ada county, tbe affiant believes tbe attendance of tbe witnesses can be procurred at tbe trial. Tbe court overruled tbe motion for a change of venue, and it is from this order that tbe appeal is taken. A motion of this character is always addressed to tbe ’ sound discretion of tbe court, and it is only in cases which clearly show that this discretion has been abused that tbe decision of tbe court will be interfered with. It is evident from tbe showing made to tbe district court that all tbe witnesses, whose convenience, it is alleged, tbe change of tbe place of trial will promote, reside beyond tbe jurisdiction of tbe court, in an adjoining state, and that tbeir attendance can not be compelled by its process. Tbe mere fact that tbe party moving for tbe change believes that tbe witnesses will voluntarily attend, is not sufficient, without stating on what grounds tbe belief is founded. This court can not act upon tbe mere belief or opinion of a party, but it must be put in possession of facts by which it can determine that such belief or opinion is supported by them. Had the affidavit stated that tbe witnesses bad promised to attend tbe trial, if a change bad been ordered to Ada county, it would have presented a case which might have entitled tbe party to tbe order. Though in such a case tbe supreme court of tbe state of New York (6 Wend. 541) has decided otherwise, [698] the same court, in 4 Cow. 532, say: “ We do not remember its ever having been held, that the fact of witnesses residing in a neighboring state is to weigh with us in fixing the venue.” Tbe appellants can have their commission to examine all their witnesses, and the retention of the venue can in no wise wort to their injury. The order of the district court is affirmed.