Majority
p. 186Lee and others vs. Chapman.
Headnote
The venue will not be changed, if the motion for that purpose is not made until after issue joined and it appears that the plaintiff, if successful on the trial, will lose a term in entering his judgment, if the motion be granted.The defendant, after issue joined, on the usual affidavit moved to change the venue. The plaintiff objected that if the motion was granted, he would lose a trial. It did not appear when the issue was joined.
By the Court,
The motion must be denied. In Chapin v. De Graff, 4 Cowen, 554, we said, if a defendant will wait until after issue joined, before he moves to change the venue, it behooves him to see that the plaintiff cannot lose a circuit by the delay ; and I see no reason why this rule of practice should not be enforced. On receiving the declaration, the defendant becomes apprized of the nature of the plaintiff’s claims, and is as competent then to judge of the necessity of a change of venue as he can be after issue joined; and if he will lay by until after issue joined, and it then appears that the plaintiff will lose a term in entering his judgment, provided he succeeds on the trial, the motion should be denied.