Brown v. Tamarack & Custer Consolidated Mining Co.

218 P. 363, 37 Idaho 650, 1923 Ida. LEXIS 189

• Court: Idaho Supreme Court
• Decided: August 4, 1923
• Status: Published

Opinion

DUNN, J.

— This is an appeal from an order of the district court of Kootenai county refusing to change the place of trial.

The action was brought by respondents to recover for damage by appellant to certain lands and personal property situated in Kootenai county. Appellant demurred and answered, and at the same time filed a demand in writing that the trial be had in Shoshone county for the reason that Kootenai was not the proper county. (C. S., sec. 6665.) Appellant also filed a formal motion, supported by affidavits, for change of venue under C. S., sec. 6666, setting up twelve grounds, including all those in said section except the disqualification of the judge. Counter-affidavits were filed by respondents.

No discussion of the demand that trial be had in Shoshone county, or the formal motion for a change of venue because the county designated in the complaint was not the proper county, is necessary. The action being brought for injury to real property situated in Kootenai county, C. S., sec. 6661, leaves no room to doubt that the proper place of trial, unless the court for good cause should change it, is in that county. The subject of the action is the damage to the land situated in Kootenai county and is not, as claimed by appellant, the alleged “casting and depositing by said defendant of crushed rock, earth, tailings and slimes, including lead, silver and other metallic substances, into the waters of-Creek mentioned in the complaint. ’ ’

The attempt of appellant to show that a fair trial could not be had in Kootenai county was amply met by counter-affidavits of respondents.

Appellant strongly urges that the coui't should have changed the place of trial to Shoshone county because of the convenience of witnesses, but the statute does not make this fact alone, if it should be conceded that the showing was entirely satisfactory on that point, a ground for changing the place of trial. So far as this ground is concerned, the court is required to change the place of trial only “when the convenience of witnesses and the ends of justice would be promoted by the change."

I Appellant urges that the provisions of C. S., sec. 6666, are mandatory, citing Newman v. Dist. Court, 32 Ida. 607, 609, 186 Pac. 922, and Callahan v. Callahan, 30 Ida. 431, 165 Pac. 1122. They are mandatory, but not until the applicant for the change has established one or more of the grounds mentioned in said section.

I We are of the opinion that the trial judge did not err in refusing to change the place of trial. The order appealed from is therefore affirmed. Costs to respondents.

McCarthy, William A. Lee and Wm. E. Lee, JJ., concur.

Petition for rehearing denied.