People ex rel. Tripp v. County Court of Fremont County, 72 Colo. 395

People ex rel. Tripp v. County Court of Fremont County

72 Colo. 395 | Colo. | 1922

Mr. Justice Denison

delivered the opinion of the court.

The relators asked for a writ of prohibition and a rule to show cause was entered.

Fulford brought suit against Waters, Harvey, Sevier, Wiley, Brookshire and Tripp in the county court of Fremont county on a note. Sevier, Wiley and Tripp are residents of Prowers county and were served there. Brook-shire is dead and his estate is in probate in Prowers county. The residence of neither Waters nor Harvey appears in the record of proceedings below.

The defendants Sevier, Wiley and Tripp moved for a change of venue on the ground that they were residents of Prowers county and were served there and their motion *396was denied. The denial was right, because, for all the record shows, Waters or Harvey or both may be resident in Fremont county, in which case the case might properly be tried there. Code 1908, § 29. The court seems to have denied the motion on the ground that the note was for some reason payable in Fremont county. We have, however, several times held that under the above section the place of payment must be expressed in the contract. Brewer v. Gordon, 27 Colo. 111, 113, 114, 59 Pac. 404, 83 Am. St. Rep. 45; People v. District Court, 66 Colo. 330, 182 Pac. 7. The note in suit does not do this. However, though the reason was wrong, the decision was right.

Rule discharged.

Mr. Chief Justice Scott and Mr. Justice Whitford concur.