File No. 5804 | S.D. | Oct 11, 1926
This action grows our of the same transactions as were involved in the case of Tackett v. Skunk et al, 50 S. D. 378, 210 N.W. 198" court="S.D." date_filed="1926-10-11" href="https://app.midpage.ai/document/tackett-v-skunk-6691433?utm_source=webapp" opinion_id="6691433">210 N. W. 198, in which the opinion of this court is handed down simultaneously herewith.
From an order denying an application for change of place of trial defendant E. W. Rugg appeals. The application was made ’by appellant Rugg on the ground of the convenience of witnesses. The affidavits of appellant and one of his attorneys set forth a list of ten witnesses, in addition to the defendants Rugg and Skunk, allege that said witnesses are necessary witnesses to prove appellant’s defense, that said witnesses reside in Corson and Walworth counties, show the great distances said witnesses would be required to travel in order to- be present at the trial if held in Tripp county, the amount of time which would be consumed in going to and returning from such place of trial, and the great expense which appellant would be required to- incur if obliged to secure the attendance of these witnesses at a trial in Tripp county. In these affidavits there is a statement of what appellant expects to prove by these witnesses collectively, but there is no showing of what any individual witness is expected to testify. The statement amounts to saying that appellant expects to prove all the elements of his several defenses by each of these witnesses.
An inspection of appellant’s answer shows that one of his defenses is that a certain land sale contract between the defendants JTackett and Skunk is void and of no force or effect, and this he says he can show by these witnesses But in one of the defenses set up in his answer, appellant sets forth in full the findings, conclusions, and decree in the case of Tackett v. Rugg et al., above referred to, an action in Corson -county, adjudging the said -contract to- be valid. His showing is to the further effect that the defendant ’Skunk deeded to him the land covered by the contract between Skunk and Tackett, and that he expects to prove by the witnesses named in his affidavit that at the time he look said deed from Skunk he had no notice, actual or constructive, of the contract between Skunk and Tackett. Yet tlje findings and decree in the case tried in Corson county, as shown by appellant’s answer, adjudicated that question and established the fact that appellant did have actual notice of the contract at the time
The affidavit of defendant Tackett, resisting the application for change of place of trial, states that said defendant is a resident of Tripp county, and the affidavit of W. J. Hooper, attorney for respondent bank, refers to Tackett’s answer and states that the only question which can 'be tried in the instant case is whether the defendant Skunk executed the order assigning the funds to said respondent, and that said defendant Skunk is the only witness who could give competent testimony as to that.
The granting of a change of venue on the ground of convenience of witnesses is largely within the discretion of the court, and in passing upon the question the trial court has a right to consider the issues joined- by the pleadings.
The trial court did not abuse its discretion in denying appellant’s application.
The order appealed from is affirmed.