Butterfield v. Hatch

381 P.2d 285, 85 Idaho 527, 1963 Ida. LEXIS 335

• Court: Idaho Supreme Court
• Decided: May 2, 1963
• Docket: No. 9263
• Status: Published

Opinion

McQUADE, Justice.

Plaintiffs commenced this action July 24, 1962, in the District Court of" Bannock County, to recover damages arising out of an automobile accident in Caribou County. The defendants moved to dismiss the action upon the ground of improper venue. In support of the motion to dismiss the defendants filed affidavits stating they were residents of Caribou County. It is conceded by plaintiffs that defendants were residents of Caribou County at all times pertinent herein.

In ruling on this motion, the trial court on its own motion treated the motion to dismiss as a demand and motion for change of venue, and on that basis, ordered the case transferred to Caribou County where the defendants reside. Plaintiffs appeal from the order for change of venue, contending the trial court erred in treating the motion to dismiss as a motion to change venue.

The issue presented by this appeal is identical to that decided by this Court in Bistline v. Eberle, 376 P.2d 501.¹ (1962) Therein it was held that I.R.C.P. 12(b) (3) does not authorize dismissal of an action upon grounds of improper venue; that if a motion to dismiss upon the grounds of improper venue is made, the same should be denied; and that the trial court is without power to change the venue of its own motion.

By virtue and under the authority of the decision in the case of Bistline v. Eberle, supra, the order of the trial court transferring the case to the Thirteenth Judicial District, in and for Caribou County is vacated and the cause is remanded for further proceedings.

.Pursuant to a stipulation of the parties, no costs will be allowed.

KNUDSON, C. J., and McFADDEN; TAYLOR and SMITH, JJ., concur.

1 . Ante, p. 167.