Kercheval v. McKenney

By the Court, Johnson, J. The appellants — plaintiffs in the Court below — brought an action in Nye County, and afterwards moved to change the place of trial to the County of Lander, in another district. The only showing [296] made in support of the motion, was contained in the affidavit of one of the plaintiffs: “ That he verily believes, and so says, that the convenience of witnesses and the ends of justice would be promoted by the change of the place of trial of the cause from Nye County to Lander County.” The motion was denied, and this appeal comes up from such order under the provisions of Sec. 274 of ' the Civil Practice Act, as amended in 1864. The affidavit was clearly insufficient to warrant the Court in changing the venue. The facts, and not the mere conclusions of the affiant, should have been stated, so as to enable the Court to judge whether the convenience of witnesses and the ends of justice would be promoted by changing the venue. _ The Court properly overruled the application. The appeal is utterly devoid of merit, and from the circumstances of the case, as it is presented by the affidavits submitted on behalf of respondent, we are strongly impressed with the belief that the appeal was made for delay, and, therefore, the respondent is entitled to damages in addition to the costs of this appeal. It is adjudged that the order of the Court below be affirmed, with costs, and in addition thereto, damages against appellants in the sum of fifty dollars. Beatty, C. J., not having heard the case, did not participate in the above decision.