Ashton v. Garretson

Mr. Justice Goddard delivered the opinion of the court: The jurisdiction of our district courts is coextensive with the state,' but when an action is brought in a county other than that in which it should be tried, the defendant may avail himself of his right to change the venue to the proper county. — Fletcher et al. v. Stowell, 17 Colo. 94; Wasson v. Hoffman, 4 [92] Colo. App. 491. And upon a proper showing the duty of the court is mandatory, and its jurisdiction is divested except for the purpose of making the order of removal. — D. & R. G. R. R. Co. v. Cahill, 8 Colo. App. 158; Smith v. The People, 2 Colo. App. 99; Pearse v. Bordeleau, 3 Colo. App. 351. The language of section 27, above quoted, expressly provides that all cases, unless otherwise provided, shall be tried in the county of defendant’s residence, unless service of summons is made upon defendant in the county where plaintiff resides, with an exception, among others, that actions upon notes or bills of exchange may be tried in the county where the same are made payable. The notes in question were not made payable in the county of Arapahoe, and therefore did not come within' the exception last mentioned. In the circumstances of this case, the defendant, having made his application in apt time, had the right to have the action tried in the county of his residence, and the court erred in denying his application for removal. — People v. District Court, 30 Colo. 123. The cases cited and relied upon by counsel for defendant in error involved the construction of section 24 of the code of 1877, and section 28 of- the code of 1883, which were materially different from the present provision on the subject, and are . not applicable to the ease in hand. It is unnecessary to consider the other assignments of error since, for the reasons given, the judgment must be reversed and the cause remanded, and it is so ordered. . Reversed- Chief Justice Gabbert and Mr. Justice Baibey concur.