Danger v. Courier News

186 N.W. 102, 48 N.D. 678

• Court: North Dakota Supreme Court
• Decided: December 15, 1921
• Status: Published

Opinions

PeR CuRIam.

This is an appeal from an order denying a change of venue. The action is for libel. It was heretofore before this court upon an appeal from an order overruling a demurrer to the complaint. 179 N. W. 909. This court held that the complaint stated a cause of action. The remittitur was filed in the trial court on November 19, 1920. On or about December 29, 1920, an answer was interposed. On March 12, 1921, the defendant made application to change the place of trial from Cass county to some other county upon the ground that an impartial trial could not be had in that county. On April 16, 1921, Hon. A. T. Cole, the district judge, before whom the motion was heard, made the following order:

“The above-entitled action came duly on to be heard before the court at the chambers thereof, in the courthouse in the city of Fargo, Cass county, N. D., on this 16th day of April, 1921, on motion of defendant for an order changing the place of trial of said action. * * * It is ■now hereby

“Ordered that the said motion be and the same hereby is granted, and the place of trial of said action be and the same hereby is changed from the district court of Cass county, N. D., to the district court of Richland county, N. D., in the Third judicial district of the state; and

“It is hereby further ordered that the clerk of district court of Cass county shall transfer to the clerk of the said district court of Richland county all the records, pleadings and files in said action now on file in his office.

“And it is hereby further ordered that in view of the fact that there' is now pending in the district court of Traill county a certain action in which J. R. Waters is plaintiff and Arthur C. Townley is defendant, and that some of the witnesses in said action may be material, important witnesses in the trial of the action herein entitled, the trial of this action shall take place at a time when the witnesses in the said case of Waters v. Townley can attend. This order subject to a further hearing if good cause be shown therefor.

“Dated at Fargo, N. D., this 16th day of April, 1921.

“By the Court:

“(Signed) A. T. Cole, Judge.”

Pursuant to said order, the clerk of the district court of Cass county transmitted the papers and the files in the case, to the district court of Richland county, wfhere they were received and filed on April 19, 1921. Subsequently, the defendants made an application before the Honorable A. T. Cole, district judge of Cass county, who made the order transmitting the cause to Richland county, that the case be transferred for trial to some other county than that of Richland. On June 16, 1921, Judge Cole made an order refusing to disturb the change of venue, ordered by him, by the order dated April 16th. On June 21, 1921, the defendants made application before Judge Allen, presiding as judge of the district court of Richland county, that the venue of said action be changed from Richland county to some other county. In support of this application, the defendants submitted same 30 affidavits, including the affidavits of the plaintiff’s attorney, who is a resident of Fargo, in Cass county. These affidavits were to the effect that owing to the political aspect of the case, and the public sentiment existing in Rich-land county, the defendants could not obtain a fair trial in Richland county. In opposition to these affidavits, the plaintiffs served a large number of affidavits from men who, so far as their affidavits show, were at least as well qualified to speak as those who made the affidavits for the defendants. According to these latter affidavits, defendants can obtain a fair trial in Richland county. After a hearing, the trial judge made an order denying the application for a change of venue. This appeal is taken from that order.

On this appeal, the only error assigned is that the trial judge erred in denying the defendants’ motion for a change of venue from Richland county to some other county.

Whether a change of venue should or should not be had on account of local prejudice is primarily one for the determination of the trial court. In other words, an application for a change of venue on the ground that an impartial trial cannot be had in the county where the action is pending is addressed to the sound, judicial discretion of the trial court; and the ruling made by the trial court will not be interfered with unless a manifest abuse of discretion appears. Booren v. McWilliams, 33 N. D. 339, 157 N. W. 117. “The reason for the rule is obvious. Whether a change of venue is necessary to obtain a fair and impartial trial is not a question of law, but' of fact. A judge on the spot, viewing all the circumstances, and having knowledge of persons, facts and influences is much better qualified than is an appellate court at a distance, with only ex parte affidavits before it, to determine the fact whether or not it is true that the defendant cannot have a fair trial by an impartial jury in the county in which he is indicted or in which the plaintiff has commenced his suit.” 4 Rncy. PL & Pr. 499-502. Upon the record submitted, this court is wholly unjustified in interfering with the ruling of the trial court.

Order affirmed.

CheistiaNSON, Bronson, and Birdzell, JJ., concur. Grace, C. J., did not participate.