107 Mich. App. 589 | Mich. Ct. App. | 1981
Defendants appeal an order of the chief judge of Macomb County Circuit Court which rejected a change of venue from Wayne County Circuit Court and ordered venue returned to Wayne County.
Plaintiff, individually and as next friend of David Boulet, commenced this action on July 19, 1979, in Wayne County Circuit Court. David Boulet was rendered a quadriplegic after sustaining serious injuries during a high school football game in which he was participating as a player for Warren Woods High School. Defendant Lawrence Kaye is the high school football coach. Defendant Brunswick Corporation is the manufacturer of the football helmet worn by David Boulet at the time of the accident. Plaintiff alleges that Kaye failed to adequately instruct, supervise, and train David Boulet to participate in the high school football program and that such failure proximately caused David Boulet’s injuries. Plaintiff also contends that the football helmet manufactured by Brunswick was defective and that said defects contributed to David Boulet’s disabling injuries.
Both defendants filed motions to change venue to Macomb County Circuit Court pursuant to GCR 1963, 403.
At the hearing on the motion, it was conceded by all parties that venue was properly laid in either Wayne or Macomb Counties. The record reveals that the accident occurred in Macomb County. Furthermore, most of the intended witnesses, including plaintiff and David Boulet, reside in Macomb County. Venue was originally properly placed in Wayne County because the resident agent for Brunswick was located in Detroit, MCL 600.1627; MSA 27A.1627.
The court ruled that trial in Macomb County
The chief judge of the Macomb County Circuit Court ruled that he had a duty to supervise case flow management under GCR 1963, 925. He opined that it was his obligation to insure that cases were not placed upon the circuit court’s docket in a manner contrary to law. It was held that the change of venue was void ab initio because the Wayne County judge did not comply with the requirements established in the Manual for Court Administration-Michigan, §2000, ch 3, ¶ I-C, pp 2081-2082 (October 1, 1978), which in pertinent part provides:
"A judge should not order a change of venue without consulting the chief judge or court administrator of the court to which venue is being changed concerning scheduling of the case and other important matters. Unless grounds for disqualification exist, a judge changing venue in a case is expected to accompany the case and conduct the trial.”
The chief judge returned venue to Wayne County with instructions to consult with him or the court administrator before transferring, venue in the future.
Defendants appeal, alleging that the chief judge of the Macomb County Circuit Court exceeded his authority by refusing to accept the transfer of venue. We agree and order that the matter be returned to the Macomb County Circuit Court.
Since venue is proper in either county, GCR 1963, 403 is controlling. It states:
*593 "The venue of any civil action properly laid, or of an appeal from any order, decision, or opinion of any state board, commission, or agency, authorized under the laws of this state to promulgate rules and regulations, may be changed to any other county by order of the court upon timely motion by one of the parties, for convenience of parties and witnesses, or, in the case of appellate review of the administrative proceedings aforementioned, for convenience of counsel, or when an impartial trial cannot be held in the county wherein the action is pending.”
Accordingly, inconvenience to the parties and witnesses is a proper basis for change of venue under the court rule. Change of venue orders are properly appealed to this Court for review. Rogoski v Streeter, 364 Mich 115; 110 NW2d 617 (1961), Hunter v Doe, 61 Mich App 465, 467; 233 NW2d 39 (1975).
We find no authority that empowers the transferee court to refuse change of venue properly laid pursuant to GCR 1963, 403. Thus, the issue of whether the Wayne County Circuit Court abused its discretion in finding Macomb a more convenient forum was not properly before the Macomb bench and is not before us on appeal.
On the other hand, there is some authority allowing the transferee court to reject a transfer of venue where it would be improperly laid. Cf. Eig-ner v Eigner, 79 Mich App 189; 261 NW2d 254 (1977). However, we find that case distinguishable as here venue was properly placed in either Wayne or Macomb Counties. In sum, where there are two or more counties which have proper venue, an order changing venue by the transferring court may not be subsequently set aside by another circuit judge. The proper remedy is appeal of the transferring court’s order.
The chief judge in the case at bar based his
We disagree. The manual does not have the force and effect of a court rule, statute, case law or properly promulgated administrative rule. It contains guidelines for efficient administration of this state’s courts. Although it is highly desirable that all judges follow the procedures established in the manual, including § 2000, the failure to comply does not render the action void. Furthermore, even if the manual had been properly incorporated into the administrative code or court rules, the provision merely states that the transferor-judge should notify the transferee court before changing venue. Thus, the language is not mandatory and no clear violation of the provision has been established.
We reverse the order of the Macomb County Circuit Court and reinstate the order of the Wayne County Circuit Court, placing venue in Macomb County.
No costs.
