Walker v. Nettleton

Gileillan, C. J. It is manifest the motion of defendant Nettleton to change the place of trial of the action was made under Laws 1881, ch. 132, and on the grounds therein prescribed.. That it was not based on the ground that, the defendant Bareness having made default, Nettleton was the only defendant answering, and therefore entitled, under Laws (Extra Sess.) 1881, ch. 25, if not under 1878 G. S. ch. 66, § 49, to have the place of trial changed to the county in which he resided, is clear, both because there is nothing in the record to indicate that on the motion the default of Barsness, if he was then in default, was brought to the attention of the court below, but also because, when the affidavit was made on which the motion was [309] based, that defendant had not made default. Section 19, above referred to, made no provision for a change of the place of trial on the application of a defendant residing in a county other than that in which the action is brought, where one or more of the defendants reside in the latter county. But because the legislature saw that one or more defendants residing in the county in which the action is brought might be joined in order to prevent a defendant residing in another county from procuring a transfer to his county, Laws 1881, ch. 132, was passed. The act was passed to prevent fraud in the matter. But if defendants claim that no opposing affidavits can be considered is well founded, then the act is really one to facilitate fraud, for it would make the change a matter of right, without reference to how it might affect the other parties on the application of a defendant with a conscience sufficiently elastic to swear “ that he has good reason to believe, and does believe,” that other defendants were made such to evade the law relating to changing place of trial. In that case there would be no need for a hearing. But the act provides for a hearing, which means that both sides shall be heard; “ and on such hearing the judge shall, if he deems proper, make an order changing the place of trial.” Such an application is, upon a hearing, within the sound discretion of the judge to whom it is made. There is no suggestion of abuse of discretion in deciding the application. (Opinion published 52 N. W. Rep. 864.) The evidence on the question of plaintiff being a bona fide holder of the note was such as to justify the verdict. Order affirmed.