Burton v. Graham

36 Colo. 199

• Court: Supreme Court of Colorado
• Decided: January 15, 1906
• Docket: No. 5028; No. 2582 C. A.
• Status: Published

Opinion

Chief Justice Gabbert

delivered the opinion of the court:

Appellees commenced an action in the district court of Pueblo county to foreclose a mortgage upon lands situate in the county of Fremont. To this action, appellant was made party defendant. The complaint was filed on the 26th day of' January, 1901. Thereafter the defendant appeared and filed a general demurrer on the 11th day of March, 1901, and on the 31st day of May following filed a motion to change the place of trial to the .county of Fremont, upon the ground that the real property described in the mortgage was wholly situate within the county of Fremont. This motion was denied. Subsequently such proceedings were had that final judgment was rendered in the action. Defendant brings the case here for review on error.

Section 25 of our Civil Code provides that actions for the foreclosure of mortgages on real property shall be tried in the county in which such property, is located. The fact that the action was brought in a county other than the one in which the real property was sitúate did not affect the jurisdiction of the court to hear and determine the case unless the defendant moved to change the place of trial. The defendant had the right, if he saw fit to exercise it, to have the cause transferred to the district court of Fremont county. This was a personal privilege and not a vested right, which he could assert or waive at Ms election. — 4 Enc. PI. & Pr., 383. If, then, in the circumstances of this case, he waived that privilege, the trial court did not err in refusing to change the place of trial. It has been repeatedly held that unless the defendant in an action brought in a county other than where it may be tried asserts his privilege in apt time to change the place of trial to the county provided by the code, that such privilege is waived. What is considered “apt time” must be determined by the circumstances of each particular case in which the question arises. It would be impossible to formulate a., rule which would serve as a guide in all cases. The defendant entered a general appearance, indicating no intention whatever to exercise his right to have the place of trial changed to the county of Fremont. He took no steps to bring that matter to the attention of the court, or advised the plaintiffs in the action that he intended to assert his right under the code, until upwards of eighty days thereafter. This would certainly indicate a purpose on his part to submit the case in all its phases to the court in which the action was brought. We are, therefore, of the opinion that, in the circumstances of this case, the defendant waived his right to a change of the place of trial, and the court did not err in overruling his motion for such change. —Fletcher et al. v. Stowell, 17 Colo. 94; Smith v. Morrill, 12 Colo. App. 333.

The judgment of the district court is affirmed.

Affirmed.

Mr. Justice Steele and Mr. Justice Campbell concur.