Olivier v. Cunningham, 51 Minn. 232

Olivier v. Cunningham

51 Minn. 232 | Minn. | 1892

Dickinson, J.

The sole question here to be decided is as to whether the refusal of the district court to change the place of trial from the county of Carver to the county of Hennepin can be sustained as a reasonable exercise of judicial discretion. It may be stated, for the sake of brevity, that while the cause properly stood for trial in the county of Carver, where the defendant resided, the motion for a change was properly made by the plaintiff, who resided in the county of Hennepin. The action was brought to recover for an accident and injuries alleged to have been caused by the negligence of the defendant in propelling a steam threshing engine, partially by steam power, through a street in the city of Minneapolis, in the county of Hennepin. The issues were as to whether the engine was propelled in a negligent manner, and whether the alleged injury was sustained or was caused by such negligence. The plaintiff’s application was supported by his affidavit showing, among other things, the materiality of and necessity for the testimony of some *234twenty .persons named,', all of whom resided in the city of Minneapolis, and most of whom are alleged to have been witnesses of the tiansactions to which the issues relate. In'brief, the plaintiff presented such a case-that, if unopposed by any counter showing, there * would have been- no reason why'the application should not have been granted. The real question is whether the case thus shown' was fairly met and opposed by any contrary or counter showing on the-part of the defendant..

A fatal defect lies'at the' foundation of the defendant’s case. An-affidavit of merits was necessary, as well as a sworn disclosure as to the witnesses whose testimony was material and necessary to the defense, . The respondent'does not question the necessity for such a presentation, and assumes to have complied with the requirements' of the law in .that, regard. But the affidavit upon- which alohe his case depends was wholly insufficient. It was made by the defendant’s attorney, who appears to have had no personal knowledge of the. matters alleged, and no reason is stated or intimated, why it was not made, by the defendant or by some person having knowledge of the facts necessary to be shown. Affidavits of merits are not to be thus made. Frankoviz v. Smith, 35 Minn. 278, (28 N. W. Rep. 508;) People’s Ice Co. v. Schlenker, 50 Minn. 1, (52 N. W. Rep. 219.) The instrument is obviously insufficient as an affidavit, a sworn statement, of merits; for in alleging that the defendant had fully stated to the affiant the case and the facts in the case, the affiant was simply making an oath to a fact which in the nature of things he presumably could not know, and concerning which he does not assume to have any personal knowledge. The insufficiency of such an affidavit of merits was pointed out in People’s Ice Co. v. Schlenker, supra.

The affidavit has the same fault as respects the showing concerning the witnesses whose testimony may have been necessary for the defense.. The affiant’s averments concerning such witnesses, and the character of the evidence they would give, rest upon the statement -of his client to him; the facts, so far as they are disclosed, being, thus presented through the medium of the unsworn statement of,the defendant:to his'attorney. Nó-reason was suggested for this *235hearsay mode of making proof of the facts necessary to be shown. The affidavit was subject to criticism also in that it did not name or identify the witnesses referred to, nor aver or show that their testimony was necessary. It may have been that the same facts to which they might have testified could have been shown by other witnesses resident in the county of Hennepin.

’ 'Without undertaking to say how far the court might have been properly influenced by the allegations concerning the state of the business in the courts of the two counties, respectively, and by a consideration as to the convenience of necessary witnesses as affected thereby, we are of the opinion that for the defects here referred to the defendant presented no proper or sufficient showing in opposition to the motion, and that it was, in technical terms, an abuse of discretion to refuse the application upon the case as presented. See People’s Ice Co. v. Schenkler, supra.

If the defendant showed no defense, no affidavit of merits, and made no disclosure as to necessary witnesses to be called on his •part, the ease of the plaintiff was really not met.

Judgment reversed, and cause remanded to district court with directions to make the proper order changing the place of trial to Hennepin county, unless that court shall in its discretion entertain any application which may be made on the part of the defendant, upon notice, to present further affidavits in opposition to the plaintiff’s application, heretofore made, for such change of the place of trial.

(Opinion published 53 N. W. Rep. 462.)