Sheckles v. Sheckles

Opinion by Lewis, J., Beatty, C. J., concurring. The venue in this case should have been changed upon the showing made by the defendant. The plaintiff herself declares that her witnesses reside in Douglas County; the defendant swears that all of his reside in that county ; and the Judge below seems to have been perfectly satisfied that the convenience of witnesses demanded a change; but it was refused, because, as stated by the Court below, the defendant “ having filed his answer to the merits and not objecting to the venue until after the case was set for trial, he therefore waived his right to the change for the accommodation of witnesses.” And to sustain this ruling, the following authorities are invoked: Tooms v. Randall, 3 Cal. 438; Keyes v. Sanford, 5 Id. 117; Parkes v. Freer, 9 Cal. 642. The mere fact that the defendant filed his answer to the merits certainly should not, in a case of this kind, interfere with his right to a change of venue, if the convenience of witnesses required it. When the action is brought in the wrong county — for example, in a county where none of the parties reside — and a change of venue is sought on that ground, and that alone, the Supreme Court of California, in the cases referred to, seem to have held that such fact ought to be taken advantage of in the answer, and that it ought to be treated as waived if not so taken. But in this case the defendant certainly does make the objection — that is, he denies that the plaintiff is a resident of Lyon County, and avers that he himself is a resident of Douglas County. The fact, if established, would at least make it the duty of the Court below to transfer the case to the [407] proper county. Actions of this character can only be brought in the county “ where the cause for the divorce shall have occurred, or in which the defendant shall reside or be found, or in which the plaintiff shall reside, if the latter be either the county in which the parties last cohabited, or in which the plaintiff shall have resided for six months before suit be brought.” The jurisdiction of the District Court over this case is based exclusively upon the fact that the plaintiff had resided in Lyon County for a period of six months prior to the institution of this suit. That fact is alleged in the complaint, and specially denied in the answer. Thus the right of the District Court of Lyon County to try the cause is directly put in issue. Rut it is of no consequence, so far as this case is concerned, whether that fact was sufficiently presented in the answer or not. Its entire omission could in no wise affect the right to have the venue changed for the convenience of witnesses. That is a fact not necessary to appear in the pleading. Section 21 of the Practice Act provides that “ the Court may on motion change the place of trial” * * * “ when the convenience of witnesses and the ends of justice will be promoted by the change.” It is clearly shown and not contradicted that the witnesses who will be called on in this case all reside in Douglas County, and' the Judge below concedes that the “ convenience of witnesses would be promoted ” by transferring the case to Douglas County; but it is claimed there was delay in making the application, and for that reason, if no other, the defendant’s motion should be denied. The record presented to us certainly discloses no serious laches on the part of defendant. The summons, it appears, was served on the twenty-fourth day of June. The answer was filed July 24th, which was within the statutory time, and this motion for change of venue was first made on the thirtieth of September, and afterwards renewed on the fifth of October by consent of counsel. Thus, only about two months after issue joined, and at the first Term of the Court thereafter, the motion is made. Eor aught we know from the record, the case might have been tried as soon in the County of Douglas as in the County of Lyon. That the motion was not made until after the case was set for trial should not of itself have any [408] influence with the Juclge in denying the application. If it was made before the witnesses were subpoenaed and preparation for trial had been made, the motion should have been granted as well before as after the setting of the case, unless it appeared that there had been an unjustifiable delay in making it, whereby, if the change were made, the other party would be prejudiced. There is really no significance in the mere fact that the case is set for trial beyond this, that usually when a case is set, all the preparations are made to try it in that county. If no such preparations have been made, and there has been no inexcusable delay, the application should be granted, if by so doing “ the convenience of witnesses and the ends of justice will be promoted.” The changing of the venue is a matter which rests very much in the discretion of the Judge at nisi prim, and we are very loth to interfere with his rulings ; but as a case for a change of venue is here clearly made out, and it is denied by the Judge below, as it appears, simply because the motion was not made until after the case had been set for trial, we think the case is clearly one calling for the interference of this Court. The order refusing a change of venue must be reversed, and the case transferred to Douglas County. And as the change is to a county whore all the witnesses reside, it will not be improper for the Judge who tries the case to reconsider the allowance for alimony and award such sum as may, under all circumstances, be deemed necessary.