17 Colo. 94 | Colo. | 1891
delivered the opinion of the court.
The several assignments of error question the jurisdiction of the count}'- court on the ground that the property embraced in the mortgage sought to be foreclosed, was wholly situate in a county different from the one in which the court was held.
Before the adoption of the code the common law distinction between local and transitory actions was more or less definitively preserved in this jurisdiction ; and a mistake in laying the venue of a cause was often fatal to the maintenance of the action. ■
The constitution of the state adopted in 1876, confers original jurisdiction of all causes upon the district courts, and provides that the county courts shall, have unlimited original jurisdiction in certain matters, and "'such other civil and criminal jurisdiction as may be conferred-by law within certain limits as to the amount of the debt, dariiage, claim or value of property involved. No territorial limit is fixed'
By statute, jurisdiction has been conferred upon tbe county courts concurrent with the jurisdiction of the district courts in all civil actions, suits and proceedings, subject to the constitutional limit as to amount and value as aforesaid. The county courts are courts of record, and as to matters within their jurisdiction under the constitution and laws of this state, their records are supported by the same presumptions and intendments of law as the records of district courts. 1 Mills’ Annotated Statutes, sec. 1054; Hughes v. Cummings, 7 Colo. 141; Dusing v. Nelson, 7 Colo. 187; Behymer v. Nordloh, 12 Colo. 352; In re Rogers, 14 Colo. 20.
Subject to the foregoing principles of constitutional and statutory law, the Code of Civil Procedure governs the question presented upon this review. Chapter 2 of the Code concerning venue, or strictly speaking, “ The place of ti'ial of civil actions,” is applicable to county courts as well as to district courts. A careful consideration of this chapter leads to the conclusion that it was not intended to limit or circumscribe the jurisdiction of the courts by rigid rules regulating the venue in civil actions. The provisions of the chapter are most liberal in this respect. They do not, in general, speak of the county in which the action must or shall be brought or commenced, but of the county in which the action shall or may be tried, subject, also, to the power of the court to change the place of trial as provided in the act itself. Such is the language of section 25 which is particularly applicable to an action like the one under consideration for the foreclosure of a mortgage of real property.
Again, from the language of section 29 it is apparent that the bringing of an action in an improper county is not regarded as a jurisdictional or fatal defect. If it were so regarded, a plea in abatement or to the jurisdiction of the court would be the proper remedy. Instead of this, the statute expressly provides for a change of the place of trial.
There are conflicting decisions upon this subject. But the views above expressed appear to us reasonable and satisfactory; besides, they are sustained by the decisions of the highest courts of the states from which our Code was borrowed. The judgment of the county court is affirmed.
Affirmed.
