State ex rel. Gnose v. District Court, No. 2,044

No. 2,044 | Mont. | Mar 31, 1904

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

An action was commenced in the district court of Deer Lodge county by J. B. Gnose, plaintiff, against Daniel James, defendant. After issue was joined, the cause was set for trial. Thereafter, on the 28th day of January, 1904, the defendant in the action filed an affidavit under the provisions of Subdivision 4 of Section 180 of the Code of Civil Procedure, as amended by the Second extraordinary session of the Eighth legislative assembly, stating that he had reason to believe and did believe that he could not have a fair and impartial trial before the' Honorable Welling Napton, district judge of the Fourth judicial district, then presiding, by reason of the bias and prejudice of such judge. A motion for a change of venue was not made by either party, but the court, on its own motion, and over the objection of plaintiff, made an order changing the place of trial from the district court of Deer Lodge county to the district court of Lewis and Clarke county. Upon application, a writ of review ivas issued from this court to review the order.

The provisions for a change of venue in civil actions are found in Section 615 of the Code of Civil Procedure, as. amended by the Second extraordinary session of the Eighth legislative assembly: “Sec. 615. The court or judge must on motion change the place of trial in the following cases.” The four subdivisions of the section then specify the particular circumstances under which a party may be entitled to a change of venue. The provisions of that section are mandatory, and require the district court to change the venue, but only after a motion has been filed and a showing made as required by the particular subdivision of the section under which the change of venue is sought. The court cannot act of its own motion, for, while a party may have an absolute right to a change of venue, it is a right that he may waive, and the court is without authority to invoke the statute in his behalf. (Miller v. Claffiin, 12 Colo. App. 192" court="Colo. Ct. App." date_filed="1898-09-15" href="https://app.midpage.ai/document/miller-v-claflin-7834685?utm_source=webapp" opinion_id="7834685">12 Colo. App. 192, 55 Pac. 201.) In attempting to change the venue in this instance, the district court exceeded its jurisdiction.

The order is annulled.

Order annulled.