South Pueblo News Printing & Publishing Co. v. Moore

Rising, C. The first assignment of error raises the only question we deem it necessary to consider. The order entered on the 20th day of September was an absolute and unconditional order for a change of the place of trial of the action. The order entered on the 22d day of November, and at the same term of court, was, in effect, a modification of the order of the 20th of September, although it purports to be an order requiring the defendant to perfect the change of venue under the order made for the change. If the court did not err in making the order of November 22d, then the order entered on the 23d day of November was not erroneous. -It follows, then, that in considering the first assignment of error we have only to look to the order granting a change of the place of trial, and the order requiring the payment of costs by the defendant, as a condition precedent to entitle it to perfect the change, to determine the question raised. If there is no authority of law for the imposition of such terms, then the action of the court cannot be sustained. In the case of O’ Connell v. Gavett, 7 Colo. 40-42, this [257] court held that, upon the granting of an application for a change of the place of the trial under the code, the general rule that costs must abide the event of the suit must apply, and that there was no authority for requiring the payment of accrued costs as a condition upon which the change could be had. The modification of the order, imposing, as terms, the payment' of costs, was erroneous. It is urged by defendant in error that the order changing the place of trial was void for uncertainty, in that it directed the removal of the case to the district court of the third judicial district, and did not specify the county in said district in which the trial should be had. Section 20 of chapter 22 of the General Statutes provides that “ changes of venue from any of the county courts may be taken for the same causes provided for changes of venue in the district courts, and the venue, in all cases, shall be changed to the county court of any adjacent county wherein the cause or causes necessitating such change do not exist; provided, that, if no substantial objection is shown to exist thereto, the venue shall be changed to the district court of the same county.” While the third judicial district includes several counties, the statute did not authorize the court to remove the case to the district court of any county other than the same county in which the cause was pending; so that, under the statute, there was no uncertainty as to the court or county to which the order for removal referred. The judgment should be reversed. We concur: Macon, 0.; Stalloup, 0. Per Curiam. For the reasons assigned in the foregoing opinion the judgment of the county court is reversed. Reversed.