18 N.W.2d 441 | Minn. | 1945
Two of the defendants reside in Brainerd, Crow Wing county, and one defendant in Little Falls in Morrison county. Plaintiff, who resides in Little Falls, pursuant to Minn. St. 1941, §
Defendant Husovsky, under §
Husovsky contends that, exclusive of the parties to the action, at least seven witnesses, residing in Little Falls or within seven miles thereof, would be compelled to travel to Brainerd for the trial unless a change of venue be granted. Hospital records are also located in Little Falls. Much is made of the inconvenience caused witnesses and the difficulties of wartime travel.
1. The granting of a change of venue on the grounds that the convenience of witnesses and the ends of justice will be promoted thereby rests within the sound discretion of the trial court, and its action will not be disturbed except for a dear abuse of discretion. Desjardins v. Emeralite Surfacing Products Co.
The moving defendant emphasizes that a change of venue should have been granted to promote the ends of justice because of remarks alleged to have been made by plaintiff's counsel at the hearing, to the effect that he desired to have the trial conducted before a jury in Crow Wing county, where the bad record and reputation of one of the defendants were known. Certainly, on the limited showing thus made, there was no abuse of discretion in failing to find that a fair trial could not be held in Crow Wing county.
2. Contrary to the moving defendant's contention, it is not the law that in order to resist an application by the defendant for a change of venue the affidavit offered in opposition thereto must necessarily be executed by the plaintiff personally. An affidavit made by the plaintiff's attorney is sufficient where such attorney has personal knowledge of the matters set forth therein. Here, obviously the affidavit of counsel was based on personal knowledge and as such was adequate. It is good practice, however, to set forth in the affidavit the reason why it is not made by the client, and likewise to allege specifically that the statements made therein are based on personal knowledge. Oliver v. Cunningham,
Writ of mandamus denied and order to show cause discharged. *580