CHAPTER XXXVII. CHANGE OF VENUE. § 990. Power of court. The codes generally provide that the court may, on motion, change the place of trial in the following cases: 1. When the county designated in the complaint is not the proper county; 2. When there is reason to believe that an impartial trial cannot be had therein; 3. When the convenience of witnesses and the ends of justice would be promoted by the change; 4. When, from any cause, there is no judge of the court qualified to act.1 In any case, before it is incumbent upon the court to make the change, good cause must be shown by the party applying therefor; and this remedy is a privilege which may be waived, as by failing to appear. The statute becomes mandatory only where the party applying for the change has brought himself within these provisions." 2 A motion for change of venue on the ground of convenience of witnesses, and because a fair and impartial trial cannot be had in the county in which the action is commenced, is held to be addressed to the sound discretion of the court, and its action thereon will not be disturbed on appeal, unless it appears that this discretion has been abused or injustice has been done; but where the ground for the motion to change the venue is that the action is brought in the wrong county, there is no discretion in the court, and the change is a matter of right, although it may be waived." The Utah statute authorizes the court to change the place of trial to the nearest court when the parties do not agree on the court to which the change shall be made. 1 Cal. Code Civ. Proc., § 397, as amended 1907; Or. B. & C. Codes, § 45; Idaho Rev. Codes, § 4125; Ariz. Civ. Code, par. 21. 2 Fletcher v. Stowell, 17 Colo. 94, 28 Pac. 326. 3 Roberts v. People, 9 Colo. 458, 13 Pac. 630. 4 Avila v. Meherin, 68 Cal. 478, 9 Pac. 428; Dewein v. Osborn, 12 Colo. 407, 21 Pac. 189; State v. Superior Court, 9 Wash. 673, 38 Pac. 206; Kennon v. Gilmer, 5 Mont. 257, 51 Am. Rep. 45, 5 Pac. 847; Louisiana etc. R. R. Co. v. Smith, 74 Ark. 172, 85 S. W. 242. 5 Smith v. People, 2 Colo. App. 99, 29 Pac. 924; Bond v. Hurd, 31 Mont. 314, 78 Pac. 579; Hennessy v. Nicol, 105 Cal. 139, 38 Pac. 649. 6 Ex parte Whitmore, 9 Utah, 441, 35 Pac. 524; Elliot v. Whitmore, 10 Utah, 246, 37 Pac. 461. The filing of a motion to strike out parts of the complaint contemporaneously with the filing of a demurrer, whether under a rule of court or otherwise, does not waive the rights of the defendants to a change of the place of trial upon a proper showing." The right to a change of venue is to be determined by the conditions existing at the time the parties claiming it appeared in the action. A defendant against whom no cause of action is stated is not entitled to a change. § 991. Grounds for change. The only ground for the change of the place of trial of an action which has relation to the judge of a court of record, is the disqualification of the judge from acting, for some one of the reasons specified in section 170 of the California Code of Civil Procedure and section 180 of the Montana code; bias or prejudice on the part of the judge is not a ground for a change of venue.1o In order to disqualify a judge from sitting or acting in an action or proceeding pending in his court, by reason of his relationship to a person appearing as an attorney for the party thereto, it is not necessary that such person should be an attorney of record, nor does his relation as attorney depend upon the obligation of his client to compensate him for his services, or upon the continuance of a partnership between him and the attorney of record." Under the Montana statute,12 authorizing the change, "when from any cause the judge is disqualified from acting," the ground for change must be one of the facts enumerated in the code as disqualifying a judge to sit in an action.13 The granting or denial of a motion for the change of the place of trial on account of the convenience of witnesses is in the discretion of the court, and is subject to review only in case of a clear abuse of discretion.14 The mere preponderance of witnesses 7 Wood v. Herman Min. Co., 139 Cal. 713, 73 Pac. 588. 8 Ah Fong v. Sternes, 79 Cal. 33, 21 Pac. 381; Hennessy v. Nicol, 105 Cal. 138, 38 Pac. 649; Wallace v. Owsley, 11 Mont. 221, 27 Pac. 790. 9 Eddy v. Houghton, 6 Cal. App. 85, 91 Pac. 397. 10 Matter of Jones, 103 Cal. 397, 37 Pac. 385; Finlen v. Heinze, 32 Mont. 354, 80 Pac. 918. P. P. F. Vol. I-38 11 Johnson v. Brown, 115 Cal. 694, 47 Pac. 686. 12 Code Civ. Proc., § 615. 13 Finlen v. Heinze, 32 Mont. 354, 80 Pac. 918. 14 Miller & Lux v. Kern County Land Co., 140 Cal. 132, 73 Pac. 836; Territory v. Kinney, 3 N. Mex. 97, 2 Pac. 357; Territory v. Lopas, 1 West Coast Rep. 821; Schilling v. Buhne, 139 Cal. 611, 73 Pac. 431. The sav on one side is not necessarily decisive of the motion.15 ing of expense to the plaintiff in the certification of numerous papers to the county of the defendant's residence is not a ground for the change of venue to the county of the plaintiff's residence, where the expense of certification is not stated, and where the defendant offers to stipulate copies to save such expense.16 Witnesses who may testify to the value of property from personal knowledge, as distinguished from those who give their opinions on an assumed state of facts, are not within the rule that expert witnesses will not be considered on a motion for a change of venue on this ground.1 It is the duty of a court to see that a party has a fair trial by an impartial jury, and where a party charged with a criminal offense applies to the court to change the place of trial, and the facts and circumstances of the case show that the party is not liable to obtain an impartial jury in such county, it is the duty of the court to change the place of trial to another county.18 § 992. Application for change. An application for a change of venue should be made at the earliest possible moment, and it comes too late where presented after asking for a postponement of the matter pending before the court.19 Where the time for the defendant to answer has been repeatedly extended, and he finally appears and moves for a change of venue, but fails to file his demurrer or answer, whereupon his default is entered, and thereafter the court, upon motion of the defendant, sets aside the default, and allows him ten days to "answer upon the merits," and such allowance imposes a condition against further delay or dilatory plea, a second motion for change of venue is properly denied.20 An application made after trial is clearly too late.21 In California, the notice to be given as to time is five days before the day appointed for the hearing, when the court is held in the same district with both parties; otherwise, ten days, unless the notice is served by mail.22 Under the Colorado statute, notice of 15 Hanchett v. Finch, 47 Cal. 192; Cook v. Pendergast, 61 Cal. 72. 16 Schilling v. Buhne, 139 Cal. 611, 73 Pac. 431. 17 Groff v. Rome etc. Co., 98 App. Div. 152, 90 N. Y. Supp. 691. 18 State v. Olds, 19 Or. 397, 24 Pac. 394. 19 Thompson V. American etc. Assoc., 114 Ill. App. 131. 20 Dennison v. Chapman, 102 Cal. 618, 36 Pac. 943. 21 Smith v. King etc. Min. Co., 9 Ariz. 228, 80 Pac. 357. 22 Cal. Code Civ. Proc., § 1005. the application for change of venue is indispensable.23 It is only in cases where the change is asked because the county designated in the complaint is not the proper county that the motion for the change must precede or accompany the answer or demurrer. The motion may be made by the defendant on any other statutory ground, without the affidavit and demand, within a reasonable time after his appearance. Such motions, however, being dilatory, must be prosecuted with diligence.24 § 993. Demand for change.-In New York, to procure a change of the place of trial, in case the county named is not the proper county, a demand is first necessary, the service of which is an essential prerequisite to the motion;25 and if the plaintiff fails to consent to the demand, application must be made to the court.26 The fact that after the service of the demand that the place of trial be changed, defendant's demurrer to the complaint is overruled is of no importance, where leave to answer is afterward given to the defendant.27 A demand is now also necessary in California, where the ground of removal is that the action is not brought in the proper county.2 28 It has been held that service of notice of the motion to change the place of trial is a sufficient demand; but it is now well settled that a notice of motion is not a demand. A demand in writing for a change is essential to the validity of an order changing the place of trial.29 In the demand the name of the proper county to which a removal is sought must be inserted.30 and service will not be made on the opposite counsel before the time for answering expires.31 It may, however, be made simultaneously with the service of the answer,32 but not after, although the defendant answered before his time had expired. Under the present New York practice, 23 Fitzhugh v. Nicholas, 20 Colo. App. 234, 77 Pac. 1092. 24 Cook v. Pendergast, 61 Cal. 72; Roberts v. People, 9 Colo. 458, 13 Pac. 630. 25 N. Y. Code Civ. Proc., § 986. 26 Clark v. Campbell, 54 How. Pr. 166; Houck v. Lasher, 17 How. Pr. 520; March v. Lowry, 16 How. Pr. 41. 27 Washington v. Thomas, 103 App. Div., 423, 92 N. Y. Supp. 994. 28 Cal. Code Civ. Proc., § 396. 29 Byrne v. Byrne, 57 Cal. 348; Warner v. Warner, 100 Cal. 11, 34 Pac. 523; Pennie v. Visher, 94 Cal. 326, 29 Pac. 711; Elam v. Griffin, 19 Nev. 442, 14 Pac. 582. 30 Beardsley v. Dickerson, 4 How. Pr. 81. 31 Milligan v. Brophy, 2 N. Y. Code Rep. 118. 32 Mairs v. Remsen, 3 N. Y. Code Rep. 138. 33 Milligan v. Brophy, 2 N. Y. Code Rep. 118. 34 the demand must specify the county where the defendant requires the action to be tried, and a demand specifying an improper county is irregular. A demand for change of venue is not insuffi cient because the attorneys of the defendant, describing themselves as such, say that they demand, instead of saying that the defendants demand, the change. The demand for change may be signed by an attorney simultaneously with his appearance. 37 36 35 994. Joinder of defendants.-It is well settled that all of the defendants must join in the application for a change of venue, or a good reason be shown why they do not; otherwise, it will be denicd. The motion may be made by one of several defendants, on notice to the other defendants, unless they be in default; or a defendant subsequently served, after a similar motion by another defendant has been denied, may move for a change of venue.38 This would seem, however, not to be the rule in California, if the motion is made on the ground that the action is not brought where the defendants reside, and part of the defendants live in the county where the action is brought.39 A judge, if properly passing upon a motion to transfer the cause to some other court than the nearest or most accessible court, on account of the convenience of witnesses, does not abuse his discretion in denying the application, where the affidavits are conflicting as to what is the most convenient court for witnesses, and only forty-five out of two hundred and fifty defendants join in the motion. 40 In an action to determine rights to real estate, of course, a defendant is entitled, as a matter of right, to have the action tried in the county where the land is situated, and all the defendants need not join in claiming such rights;11 and an application for the change of venue to the proper county, made by all the defendants who had been served at the time, cannot be adversely affected by 34 N. Y. Code Civ. Proc., § 986. 35 Buck v. City of Eureka, 97 Cal. 135, 31 Pac. 845. 36 Sailly v. Hutton, 6 Wend. 508; Legg v. Dorsheim, 19 Wend. 700; Pieper v. Centinela Land Co., 56 Cal. 173; McKenzie v. Barling, 101 Cal. 459, 36 Pac. 8. 87 McSherry v. Pennsylvania etc. Land Co., 97 Cal. 637, 32 Pac. 711; Bachman v. Cathry, 113 Cal. 498, 45 38 New Jersey Zinc Co. v. Blood, 8 Abb. Pr. 147. 39 Cal. Code Civ. Proc., § 395. 40 Anaheim Water Co. v. Jurupa Land etc. Co., 128 Cal. 568, 61 Pac. 80. 41 O'Neil v. .O'Neil, 54 Cal. 187; Warner v. Warner, 100 Cal. 16, 34 Pac. 523. |