Fletcher & Gerelds v. Stowell

Mr. Justice Elliott delivered the opinion of the court. The several assignments of error question the jurisdiction of the count}'- court on the ground that the property embraced in the mortgage sought to be foreclosed, was wholly situate in a county different from the one in which the court was held. Before the adoption of the code the common law distinction between local and transitory actions was more or less definitively preserved in this jurisdiction ; and a mistake in laying the venue of a cause was often fatal to the maintenance of the action. ■ The constitution of the state adopted in 1876, confers original jurisdiction of all causes upon the district courts, and provides that the county courts shall, have unlimited original jurisdiction in certain matters, and "'such other civil and criminal jurisdiction as may be conferred-by law within certain limits as to the amount of the debt, dariiage, claim or value of property involved. No territorial limit is fixed' [96] by the constitution to the civil jurisdiction either of the district courts or of the county cóurts. Const., art. 6, sections 11 and 23. By statute, jurisdiction has been conferred upon tbe county courts concurrent with the jurisdiction of the district courts in all civil actions, suits and proceedings, subject to the constitutional limit as to amount and value as aforesaid. The county courts are courts of record, and as to matters within their jurisdiction under the constitution and laws of this state, their records are supported by the same presumptions and intendments of law as the records of district courts. 1 Mills’ Annotated Statutes, sec. 1054; Hughes v. Cummings, 7 Colo. 141; Dusing v. Nelson, 7 Colo. 187; Behymer v. Nordloh, 12 Colo. 352; In re Rogers, 14 Colo. 20. Subject to the foregoing principles of constitutional and statutory law, the Code of Civil Procedure governs the question presented upon this review. Chapter 2 of the Code concerning venue, or strictly speaking, “ The place of ti'ial of civil actions,” is applicable to county courts as well as to district courts. A careful consideration of this chapter leads to the conclusion that it was not intended to limit or circumscribe the jurisdiction of the courts by rigid rules regulating the venue in civil actions. The provisions of the chapter are most liberal in this respect. They do not, in general, speak of the county in which the action must or shall be brought or commenced, but of the county in which the action shall or may be tried, subject, also, to the power of the court to change the place of trial as provided in the act itself. Such is the language of section 25 which is particularly applicable to an action like the one under consideration for the foreclosure of a mortgage of real property. Again, from the language of section 29 it is apparent that the bringing of an action in an improper county is not regarded as a jurisdictional or fatal defect. If it were so regarded, a plea in abatement or to the jurisdiction of the court would be the proper remedy. Instead of this, the statute expressly provides for a change of the place of trial. [97] The duty of changing the place of trial is not devolved upon the court of its own motion. The change is required to be made only “on good cause shown.” These words plainly imply that a party considering himself aggrieved by the bringing of the action in a wrong county, or considering himself likely to be prejudiced by the trial thereof in the county where the action is pending, must apply to the court and show good cause therefor, in order to have the place of trial changed. Such change may be applied for on the ground that the action has not been brought in the proper county, considering the location of the subject of the action,, as in the present case; or it may be applied for on the ground that the ends of justice, or the convenience of parties and théir witnesses, will be better subserved by the change. But in any case, before it shall be incumbent upon the court to make the change, good cause — that is, some statutory ground —must be shown to the court by the party applying for such change; and this remedy is a privilege which may be waived, as by failing to appear. These conditions are fortified, though not controlled, by the fact that chapter 3 of the Code concerning the manner of commencing civil actions, does not designate any particular county within which the summons must be personally • served. Valid personal service in an action may be obtained in any county in the state. Code, sections 37, 39, 44. Watts v. White, 13 Cala. 324; Houck v. Lasher, 17 How. Pr. (N. Y.) 521; Campau v. Dewey, 9 Mich. 404. There are conflicting decisions upon this subject. But the views above expressed appear to us reasonable and satisfactory; besides, they are sustained by the decisions of the highest courts of the states from which our Code was borrowed. The judgment of the county court is affirmed. Affirmed.