Turner v. Maddox.
An application for a change of venue, on the ground that the defendant resides in a different county from that in which the suit is brought, is not an ex parte question.
Where there is application for a change of venue, for the reason that the suit is brought in a different county from that in which the defendant resides, the plaintiff should be heard upon the question of residence, and permitted to show that he has commenced his action in the proper county.
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Appeal from the Guthrie District Court.
Wednesday, October 13.
Appeal from an order of the district court, directing a change of venue. The defendant being sued in Guthrie county, he made affidavit that he resided in Mahaska, and not in Guthrie county. The plaintiff offered a counter affidavit, that defendant did not reside in Mahaska, but in Guthrie, and offered further to prove the same. The court refused to hear the evidence offered by the plaintiff, and ordered the change, with ten dollars cost to the defendant, from which the plaintiff appeals.
Bates (& Philipps, for the appellant.
No appearance for the appellee.
Woodward, J.
— That the plaintiff should be heard upon the question of residence, and be permitted to show that he has commenced his action in the proper county, we think manifest. It is not an ex parte question. The proper manner of presenting evidence on a motion, is by affidavits, but it -would be discretionary with the court to receive it orally. It does not appear, however, in what manner evidence was offered, farther than the affidavit of plaintiff, and the manner of adducing it is not made the question. The main point is, whether the court should have heard the plaintiff, and we are of the opinion that it should, and that in not doing so, there was error. As to the amount allowed, there are no facts before this court upon which to adjudicate; and if we assume that there were none before the district court, still we should not be disposed to disturb the order.
The judgment for a change of venue is reversed, and the district court is directed to proceed in accordance with this opinion.