Opinion
No. 3031
November 8, 1933.
Appeal from Third Judicial District Court, Lander County; Edgar Eather, J.
James D. Finch, for Appellant:
Leon Shore, for Respondent:
The mere fact that a party may allege that he is a resident of another county than the one in which the complaint is filed is not, in itself, sufficient to warrant the court in ordering a change of venue, but the other party has a right to disprove the allegation that defendant is or was a resident of another county at the time the action was filed.
We respectfully urge that the allegations of the affidavit of the defendant in support of her motion for change of venue on the ground that she could not obtain a fair and impartial trial in Lander County are not sufficient without further proof to warrant the court in ordering change of venue on that ground. Noonan v. Luther, 112 N.Y. Supp. 898; Mathis v. Bank of Taylorsville (Ky.), 124 S.W. 876; Tarner v. Hobart Estate Co., 267 P. 312; Table Mtn. Gold, etc. Mng. Co. v. Waller's Defeat Silver Mining Co., 4 Nev. 218, 97 Am. Dec. 526; Conley v. Chedic, 7 Nev. 336.
The lower court having found, from testimony given in open court and from the affidavit in support of the motion, that the place of residence of the defendant, at the commencement of the action, was in Washoe County, its ruling ordering a change of place of trial was the only ruling possible. Duffill v. Bartlett, 53 Nev. 228.
I submit that in the present matter no error appears from the record, and the lower court should be presumed to have been justified in issuing the order appealed from. Water Co. v. Belmont, 50 Nev. 24, 249 P. 565; State v. Boyle, 49 Nev. 386, 248 P. 48.
OPINION
This case is now before us on appeal from an order granting the motion of the defendant for a change of venue. The plaintiff instituted his suit for a divorce in the Third judicial district court, in and for Lander County, Nevada. The defendant in apt time served notice of motion for a change of place of trial, the ground thereof being that the defendant, at the time of the commencement of the suit and at all times since, was a resident of the city of Reno, Washoe County, Nevada, and that there is reason to believe that an impartial trial could not be had in Lander County, Nevada, pursuant to sections 8571 and 8572 N.C.L. The defendant filed her affidavit in support of said motion, wherein she stated that she was, at the time of the institution of the suit, and at all times since, a resident of Washoe County, Nevada, and in addition set forth facts showing that an impartial trial could not be had in said county of Lander.
On the day set for the hearing the plaintiff did not appear either by counsel or in person. The defendant appeared both in person and by counsel. On the hearing she gave testimony in support of her motion. The testimony is not before us, hence we must presume that it was sufficient to justify the court in granting the motion for a change of venue.
The order appealed from is affirmed. It is further ordered that remittitur issue instanter.