Wolverton v. Wells — 1 Hill & Den. 374

Majority

p. 374

Wolverton vs. Wells.

Headnote

Where the defendant served papers for a motion to change the venue from the county of S. to the county of M., together with an order to stay proceedings until the decision of the motion; held, that the plaintiff, within the time specified in the 23d rule, might nevertheless amend his declaration, by changing the venue to the county of A.

In such case, if it appear, on the motion, that the plaintiff has a sufficient number of witnesses to retain the venue in the county to which he has changed it by his amendment, and the defendant has had time to serve new papers since the amendment, but has omitted so to do, the motion will be denied.

Venue. Amendment. Issue was joined on the 24th of April last, and on the same day, the defendant served papers for a motion to change the venue from the county of Saratoga to the county of Montgomery,, with an order to stay proceedings until the motion should be decided. On the 28th of April, the plaintiff amended his declaration, under'the'- 23d> rule,., by changing" the venue to - the- • county of Albany. The defendant thereupon served papers , for, a

p. 375

motion to set aside the amended declaration, for irregularity. Both motions were now made by

A. Sheldon $* M. T. Reynolds, for the defendant.

I Harris, contra,

insisted that the plaintiff was regular, and he read an affidavit," showing that the plaintiff had a sufficient number of witnesses in Albany, to retain the venue in that county.

The order to stay proceedings, for the purpose of moving to change the venue, stayed the plaintiff from “ giving notice and subpoenaing witnesses for the trial,” but left him the full liberty of “ taking any other step” in the cause. (Rule 94.) He was consequently regular in amending the declaration, pursuant to the 23d rule—twenty days not having elapsed after service of the plea. This view of the cáse disposes of both motions. ' The amended declaration cannot be set aside, because the amendment was regularly made, and the venue cannot be changed to Montgomery, because the plaintiff has witnesses enough in Albany to retain the venue in that county.

If the defendant could make a ^better case for changing the venue from. Albany, than he has for changing it from Saratoga, where it was originally laid, he had time enough, and should have served additional papers. In this case, the change of venue by amendment has worked no injury to the defendant. Should a case arise differing in its circumstances from the present one, we will take care that the defendant suffers no wrong.

Motions denied.

p. 377