Duffill v. Bartlett , 53 Nev. 228 ( 1931 )

I dissent. The right of a party to a change of venue is regulated in this state by statute. Section 5015 Rev. Laws of Nevada. In civil cases such change may be made: (1) When the county designated in the complaint is not the proper county. (2) When there is reason to believe that an impartial trial cannot be had therein. (3) When the convenience of witnesses and the ends of justice would be promoted by the change.

Where the legislature has undertaken to prescribe the cases wherein a change of venue may be had, its directions are generally taken to be exclusive on the subject. 27 R.C.L. pp. 811-819.

The application for a change of venue was made upon the sole ground of residence of the defendant in Clark County. It is stated in the moving papers "that at the time of the commencement of this action, defendant was a resident of the city of Las Vegas, County of Clark, State of Nevada, and has ever since been, and continues to be, and still is a resident of said City of Las Vegas, County and State aforesaid, and that said County of Clark, in said state, is the proper place of trial of the above-entitled cause."

But, as before noted, it is only when the county designated in the complaint is not the proper county that a change is allowed on that ground; not when it appears that the county to which removal is sought is the proper county.

It appears from the complaint that plaintiff has resided in Washoe County for three months before this action was brought. Consequently, by virtue of the provisions of section 5838 of the Rev. Laws, as amended by Statutes of 1927, p. 126, c. 96, Washoe County was a proper county for the commencement of the action, and is a proper county for the trial thereof.

So far as material here, said last-mentioned section reads: "Divorce from the bonds of matrimony may be obtained, by complaint, under oath, to the district court of the county in which the cause therefor shall have accrued, or in which the defendant shall reside or be found, or in which the plaintiff shall reside, if the latter be either the county in which the parties last cohabited, or in which the plaintiff shall have resided three months before suit be brought, for the following causes."

So it seems that the change of venue is granted in this case by the majority ruling on some ground not authorized by statute. In my opinion section 5014 of the Rev. Laws has no application to an action for divorce. But, even if such contention were conceded, the section does not provide an additional ground for a change of venue. The case of Connolly v. Salsberry, 43 Nev. 182,183 P. 391, cited by petitioner, is not in point, and the language there used by the court, which is stressed by petitioner, must be considered with reference to the point decided. It is what is decided that is binding, not what is said.