The defendant lives in Grant county. The plaintiff brought one action against the defendant in Stark county for personal injury occasioned by a collision bеtween two automobiles, and another action for damages because of the death of her husband in the same collision.
Within the time prescribеd by law the defendant demanded a change of venue in the first case and thereafter the parties stipulated a change to Grant county — no rеference being made by plaintiff to any reservation of rights.
The answer in the first case is dated September 23, 1933, and the answer in the second case Oсtober 14. On September 27th plaintiff noticed the first case for trial in Grant county.
On October 20 the plaintiff moved for a change of venue to Stark county оn the ground of convenience of witnesses and furtherance of justice. By order of Judge Berry the motion was set for hearing before Judge Lembke at Mаnning, on October 24, 1933. The court ordered a change to Stark county, and from this order defendant appeals.
As stated by appellant, the demand, stiрulation, affidavits in support of application for change of venue, etc. “on appeal in the second action are precisely in the same form as those involved in the first action,’’ as are also demand for change of venue and the order. Therefore we *364 consider thе affidavits together and determine the two appeals in the one hearing.
The appellant says that the plaintiff, having stipulated a change of venue upon the demand of the defendant, has waived her right to make application for change; that by noticing the first case for trial in Grant cоunty the plaintiff has waived any right to a change of venue in that case; the showing made in support of plaintiff’s application is so defective that the court abused its discretion in granting the change of venue.
Appellant says that á party may waive his right to a change of venue and this waiver may be shоwn “by a stipulation or agreement expressly or impliedly to this effect” or by delay in making the application, etc., citing the rule laid down in 40 Cyc. 124, and Tubbs v. Embree,
The stipulation changing the place of triаl to the county of the defendant’s residence is not in itself a waiver of any right the plaintiff may have to demand a change of venue bn the ground of cоnvenience of witnesses. The defendant was entitled to his change as a matter of right. Section 7415, Comp. Laws Supp. 1925, and § 7418 Comp. Laws Supp. 1913. The plaintiff could not prevent it. See Hinsey v. Alcox,
The district court of Stark county could not retain jurisdiction because of convenience of witnesses and the furtherance of justice. That was a matter for the district court of Grant county to determinе. Clark v. Cleveland,
The noticing of the case for trial in Grant county was not a waiver of a right to change of venue on the ground of convenience of witnesses and furtherance of justicе. It was to the district court of Grant county the plaintiff would apply for a change of venue.
Even if noticing the case for trial is considered acquiеscence in the jurisdiction of the district court of Grant county, there was nothing to prevent a subsequent motion to change the venue. If the action hаd been commenced in Grant county — the proper county — plaintiff would have had the right to ask' for a change of venue on account of convenience of witnesses and the furtherance of justice.
There is nothing to indicate delay on the part of the plaintiff in making her applicаtion. The first case was not at issue until September 23rd and the second case was not at issue until October 14th. The application for change of vеnue was made October 20th. The plaintiff moved quite promptly. No claim of waiver can be founded upon the theory of delay.
The actions are founded upon a collision'which the plaintiff says was caused solely by the negligence of the defendant and in which she was seriously injured and her husband killed — the personal injuries being the subject of the first action and the death of her husband the subject of the second action. The accident took place in Stark county at a point some distance west of Dickinson. The affidavits in support of the application are voluminous. They set forth the nаmes of a large number of witnesses, other than the parties themselves, their residences, the expense of getting them to Grant county, the inconvenience of these witnesses, and in general what some of the witnesses will *366 testify to, though exception is taken by the appellant to the affidavits on the ground that they are indefinite and not precise. Plaintiff makes an issue of a probable time for terms of court in Grant county, the public expense, the рrobable effect of such expense in preventing a term of court in Grant county, and other matters appealing to the discretion of the court in determing “furtherance of justice.”
An application for change of venue on the ground of convenience of witnesses in furtherance оf justice is addressed to the sound judicial discretion of the court. Wolfson v. Schieber,
The trial court, in deciding whether a change of venue should be granted, must determine in which of the “two courts a trial will be most accessible to the greatest number of witnesses whose personal attendance the pаrties may require and reasonably expect to obtain” (Curren v. Story,
True, the burden of proof is upon the moving party (McCarty v. Thornton,
If upon еxamination of the whole record we can not say the trial court abused its discretion in granting the change of venue, its action will be sustained. The examination of the whole record in these caséis does not show such an abuse of discretion as justifies a reversal and hence the orders are affirmed.