SHECKLES VS. SHECKLES (DIVORCE)

Key holdings

Practitioner summary

Appeal from an order of the district court refusing defendant husband's motion to change the venue of plaintiff wife's Lyon County divorce action to Douglas County. Opinion by Lewis, J., Beatty, C. J., concurring; reversed. The showing was uncontradicted that the witnesses of both parties resided in Douglas County, and the trial judge conceded the convenience of witnesses favored the change but denied the motion on waiver grounds - defendant had answered to the merits and did not object to venue until after the case was set for trial (relying on Tooms v. Randall, 3 Cal. 438; Keyes v. Sanford, 5 Cal. 117; Parkes v. Freer, 9 Cal. 642). The supreme court distinguished those cases as involving wrong-county objections that must be raised in the answer; here defendant's answer in fact denied plaintiff's Lyon County residence and averred his own Douglas County residence, putting in issue the venue fact under the divorce statute (actions maintainable only in the county where the cause for divorce occurred, where defendant resides or is found, or where plaintiff resides if that county is the one in which the parties last cohabited or in which plaintiff resided for six months before suit). Independently, convenience of witnesses need not appear in the pleadings: Practice Act sec. 21 permits the court on motion to change the place of trial 'when the convenience of witnesses and the ends of justice will be promoted by the change.' No serious laches appeared - summons served June 24, answer filed July 24 within the statutory time, motion first made September 30 and renewed October 5 by consent of counsel, about two months after issue joined and at the first term of court thereafter - and the setting of the case for trial, absent preparations made or prejudicial delay, should not of itself defeat the motion. Though venue changes rest largely in the discretion of the nisi prius judge, a case for the change was clearly made out. The order refusing the change was reversed and the case ordered transferred to Douglas County, with the observation that the judge who tries the case may properly reconsider the allowance for alimony and award such sum as may be deemed necessary under all the circumstances.

In plain language

A wife filed for divorce in Lyon County. Her husband moved to change the venue to Douglas County: the wife herself declared her witnesses lived in Douglas County, the husband swore all of his did too, and he denied that the wife was a Lyon County resident while averring that he lived in Douglas County. The district judge conceded that the convenience of witnesses favored the change but refused it, reasoning that the husband had waived the right by answering on the merits and not objecting until after the case was set for trial. The Nevada Supreme Court reversed. Merely filing an answer to the merits does not waive a change of venue sought for the convenience of witnesses - that ground does not need to appear in the pleadings at all, and Section 21 of the Practice Act lets the court change the place of trial when the convenience of witnesses and the ends of justice will be promoted. The court also noted that the divorce venue statute confines such actions to the county where the cause occurred, where the defendant resides or is found, or where the plaintiff resides if that is where the parties last cohabited or where the plaintiff has resided for six months - and the husband's answer put the Lyon County residence basis directly in issue. On timing, there was no serious delay: the answer was filed within the statutory time and the motion was made about two months after issue was joined, at the first term of court thereafter, and the mere fact that the case had been set for trial should not by itself defeat the motion. The court ordered the case transferred to Douglas County and said the judge who tries the case could reconsider the alimony allowance.