Grewell v. Walden

Crocker, J. delivered the opinion of the Court—Norton, J. concurring.

This is an action brought in San Joaquin County to recover the possession of a quantity of cord wood, alleged to have been taken from the plaintiff’s possession in Stanislaus County, and then detained in the County of San Joaquin. The defendant recovered judgment, from which the plaintiff appeals.

The plaintiff, after issue joined, moved the Court for a change of venue to Stanislaus County, alleging in his affidavit that his right to the wood depended upon his title and possession of the latid from which the wood was cut, which lay in Stanislaus County, and that the convenience of witnesses, seventeen of whom are stated to be residents of Stanislaus County, required a change of the place of trial to the latter county. He also states good reasons why he commenced the action in San Joaquin County, to wit: the necessity of procuring the immediate possession of the wood before it could be removed beyond his reach to some other part of the State. Ho opposing affidavits appear to have been filed. The Court denied the application, and this is assigned for error. We see no good reason why the plaintiff in an action may not have the place of trial changed, upon a proper showing, equally with the defendant. There is nothing in the statute forbidding it. Sec. 21 of the Practice Act provides that “ The Court may, on motion, change the place of trial in the following cases,” etc. It does not confine this motion to the defendant, but leaves it open for both parties. As a general rule, the action should be commenced in the county where the defendants reside ; but if, after the issues are made up, and each party knows the facts necessary to be proved, the plaintiff should find that the convenience of his witnesses requires that the trial should be had in some other county, where the cause of action arose, and where his witnesses reside, he is certainly as much entitled to a change as the defendant would be under the same circumstances, and he should not be denied that right because he has brought his action in the county where the defendants reside, or [169]where the personal property in controversy may happen to be found. The present case shows the importance of thus establishing the rule. The plaintiff finds his property in San Joaquin County, and to prevent its being carried away beyond his reach, or being converted by the trespasser, he commenced his suit in that county to recover its possession. But the property was taken from his possession in Stanislaus County, where the act was committed which forms the gravamen of the action, and where it is presumed the witnesses reside who know the facts. The Court therefore erred in refusing to change the place of trial.