3 Nev. 404 | Nev. | 1867
Opinion by
concurring.
The venue in this case should have been changed upon the showing made by the defendant. The plaintiff herself declares that her witnesses reside in Douglas County; the defendant swears that all of his reside in that county ; and the Judge below seems to have been perfectly satisfied that the convenience of witnesses demanded a change; but it was refused, because, as stated by the Court below, the defendant “ having filed his answer to the merits and not objecting to the venue until after the case was set for trial, he therefore waived his right to the change for the accommodation of witnesses.” And to sustain this ruling, the following authorities are invoked: Tooms v. Randall, 3 Cal. 438; Keyes v. Sanford, 5 Id. 117; Parkes v. Freer, 9 Cal. 642.
The mere fact that the defendant filed his answer to the merits certainly should not, in a case of this kind, interfere with his right to a change of venue, if the convenience of witnesses required it. When the action is brought in the wrong county — for example, in a county where none of the parties reside — and a change of venue is sought on that ground, and that alone, the Supreme Court of California, in the cases referred to, seem to have held that such fact ought to be taken advantage of in the answer, and that it ought to be treated as waived if not so taken. But in this case the defendant certainly does make the objection — that is, he denies that the plaintiff is a resident of Lyon County, and avers that he himself is a resident of Douglas County. The fact, if established, would at least make it the duty of the Court below to transfer the case to the
Rut it is of no consequence, so far as this case is concerned, whether that fact was sufficiently presented in the answer or not. Its entire omission could in no wise affect the right to have the venue changed for the convenience of witnesses. That is a fact not necessary to appear in the pleading. Section 21 of the Practice Act provides that “ the Court may on motion change the place of trial” * * * “ when the convenience of witnesses and the ends of justice will be promoted by the change.” It is clearly shown and not contradicted that the witnesses who will be called on in this case all reside in Douglas County, and' the Judge below concedes that the “ convenience of witnesses would be promoted ” by transferring the case to Douglas County; but it is claimed there was delay in making the application, and for that reason, if no other, the defendant’s motion should be denied.
The record presented to us certainly discloses no serious laches on the part of defendant. The summons, it appears, was served on the twenty-fourth day of June. The answer was filed July 24th, which was within the statutory time, and this motion for change of venue was first made on the thirtieth of September, and afterwards renewed on the fifth of October by consent of counsel. Thus, only about two months after issue joined, and at the first Term of the Court thereafter, the motion is made. Eor aught we know from the record, the case might have been tried as soon in the County of Douglas as in the County of Lyon. That the motion was not made until after the case was set for trial should not of itself have any
The order refusing a change of venue must be reversed, and the case transferred to Douglas County. And as the change is to a county whore all the witnesses reside, it will not be improper for the Judge who tries the case to reconsider the allowance for alimony and award such sum as may, under all circumstances, be deemed necessary.