State Ex Rel. Nielsen v. Superior Court

I am unable to agree with the conclusions reached in the majority opinion. In the first place, it seems to me to be unnecessary in the instant case to treat relators' application for a writ of mandate as an application for a writ of certiorari, in view of our decisions in the following cases: State ex rel.Ross v. Superior Court, 132 Wn. 102, 231 P. 453; State exrel. Merritt v. Superior Court, 147 Wn. 690, 267 P. 503;State ex rel. Schmidt v. Nevins, 180 Wn. 356, 39 P.2d 990;State ex rel. Beffa v. Superior Court, 3 Wn.2d 184, 100 P.2d 6. In the case last cited, we stated:

"While an application for change of venue on the ground of convenience of witnesses is addressed to the sound discretion of the court, nevertheless, if the discretion be exercised in an arbitrary or capricious manner, it amounts to an abuse of discretion, such as will justify this court in reviewing the matter upon application for a writ of mandate."

The majority opinion must be based upon the fact that the trial court abused the discretion vested in it.

Under our venue statutes, I am of the opinion that, in an action of this character, the defendant is the favored party, with the right to have the action brought in the county of his residence. State ex rel. Hand v. Superior Court, 191 Wn. 98,71 P.2d 24.

In the instant case, plaintiffs moved for a change of venue from the county of defendant's residence (Thurston county) to the county of plaintiffs' residence (King county), upon the ground that the convenience of witnesses and the ends of justice would be served by such change. This surely presented a question which called for an exercise of judicial discretion by the trial judge. His order denying this motion should, in my opinion, stand, unless there has been a manifest abuse of that discretion. I again refer to the Beffa case, supra, wherein we stated:

"However, it can safely be said that abuse of judicial discretion is not shown unless the discretion has been exercised upon grounds, or to an extent, clearly untenable or manifestly unreasonable."

Governed by the rule above mentioned, I am clearly of the opinion that this record does not show an abuse of discretion.

Plaintiffs have shown by affidavits that it would be inconvenient for three of their witnesses to come to Olympia to testify, and two of these witnesses state in their affidavits that they "now feel that they would not willingly go to Olympia, Washington, to testify in said cause." Plaintiffs' attorney in his affidavit also states that there are two other important witnesses for plaintiffs, who live in Seattle, and for whom it would be a serious inconvenience to go to Olympia to testify.

On the other hand, defendant shows by an affidavit made by his counsel that all of his material witnesses, five in number, live in Olympia, and that it would be just as inconvenient for these witnesses to attend court in Seattle as it would be for plaintiffs' witnesses to attend court in Olympia.

There is no doubt but that a change of place of trial to King county would be convenient for plaintiffs' witnesses, but this alone is not a sufficient reason for granting such a change. The entire situation must be looked at, and due consideration given to the convenience of the witnesses for each party, rather than to the convenience of plaintiffs' witnesses alone. Leopold v.Livermore, 115 Wn. 481, 197 P. 778.

It is true, as stated in the majority opinion, that the decision in each case calling for a review upon an application for change of venue must depend upon its facts. However, I think it quite significant that neither of the cases cited in the majority opinion to support a reversal of the trial court in the instant case goes as far, in my opinion, as does the majority opinion in this case.

In State ex rel. Ross v. Superior Court, supra, in so far as witnesses were concerned, it was shown that all known witnesses for both parties resided in King county, to which county relator was asking that the case be transferred for trial. King county was also the place of residence of relator (the defendant).

In State ex rel. Merritt v. Superior Court, supra, a change of venue to plaintiff's county was granted, upon a showing that the accident occurred in that county and that all known material witnesses resided there.

I am therefore of the opinion that it cannot be said in this case that the trial court abused the discretion vested in it, in holding that neither the convenience of witnesses nor the ends of justice required a transfer of this case to King county for trial.

For the foregoing reasons, I dissent.

ON REHEARING. [En Banc. July 7, 1941.]