Byram v. Piggot

Mr. Justice Gunter delivered the opinion of the court: This was an action in tort, alienation of the affections of a husband. Plaintiff had a verdict and judgment, defendant brings error. The action was brought in Arapahoe county. The defendant moved a change of venue, and affirmatively showed that she, at the time of the institution of the suit, was a resident of Larimer county,, this state, and was served with process therein. In no manner did it appear by the complaint, or otherwise, that the tort constituting the cause of action was committed in Arapahoe county. The court denied the motion. Section 27, Mills ’ Ann. Code, provides: “In all other cases the actions shall be tried in the county in which the defendants or any of them may- reside at the commencement of the action, or in the county where the plaintiff resides when service is made on the defendant in such county * # * and actions for torts in the county where the tort was committed.” “The Texas Code (Revised Statutes of Texas, 1895, art. 1194), is substantially the same as section 27 of our code.” — Brewer v. Gordon, 27 Colo. 111, 115. [72] In Cohen v. Munson, 59 Texas 236, approved in Brewer v. Gordon, supra, the court said: ‘ ‘ To entitle plaintiff to sue in a county other than the residence of the defendant, he must bring his case .clearly within one of the exceptions. ’ ’ An exception to the general rule entitling defendant to be sued in the county of his residence is that actions for torts may be brought “in the county where the tort was committed. ’ ’ It was incumbent upon the plaintiff in resisting the motion for a change of venue to' bring the case within this exception. This she failed to do, and the motion.should have been granted.- When the court failed to grant the motion, it lost jurisdiction of the case, and its retention thereafter constituted reversible error. — Brewer v. Gordon, supra; Woodworth v. Henderson, 28 Colo. 381. Judgment reversed. Reversed. Chief Justice Gabbeet and Mr. Justice Maxwell concurring.