On a motion for change of venue, on the ground that a fair and impartial trial cannot be had, it must be made to appear to the Court, by the statement of facts, that such trial cannot be had in the given case. It is not sufficient for the applicant to swear that he cannot, as he believes, have such trial. That is a conclusion of law for the Court to draw from the facts. (11 Ohio Rep. 128; 12 Wend. 203, 290; 2 Wend. 250; 7 Hill, 148; 1 Cal. 382; Laws of 1850, p. 299, secs. 230, 231, and 232; Laws of 1853, p. 34, ch. 21.)
It is not pretended that there was either prejudice or excitement in reference to this suit, or the subject-matter of it.
JUDGES: Murray, Chief Justice, delivered the opinion of the Court. Heydenfeldt, Justice, concurred.
OPINION
MURRAY, Judge
The main error relied on by the appellant is the refusal of the Court below to grant a change of venue.
The affidavit states that, owing to certain litigations in which the defendant had been engaged, a prejudice existed against him in the city of San Francisco, which would prevent him from having a fair and impartial trial, etc.
The power of granting a change of venue is discretionary with the Courts below, subject to revision only in cases of gross abuse. The peculiar condition of this State, the daily fluctuations of property, and constant change of population, are unfavorable to changes of the place of trial, or delays in the administration of justice, and the experience of the past few years has shown that these applications too often result in a total loss of all the rights involved. In addition to these considerations, the defendant shows in his affidavit that all the witnesses of the plaintiff were residents of San Francisco, and openly seeks to escape the effects of their testimony by removing the cause.
The affidavit on its face was insufficient to warrant the Court in changing the venue. The facts should have been stated in such a manner as to enable the Court to draw its own inference, whether an impartial trial could be had in the particular case, admitting that a prejudice did exist in the community against the defendant. That prejudice is not so connected in the affidavit as to show any operation between the parties in this suit.
Regarding this as a discretionary power, coupled with the fact that the cause was then on the calendar for trial, and that this was the second application for a change of venue, we cannot come to any other conclusion than that the Court properly overruled the application.
There is no weight in the other errors assigned.
Judgment affirmed.