Blake v. Everman

This is an appeal from an order denying' a motion to change the place of trial. The action- is brought by the wife of one Jonas J. Blake for the alleged alienation of his affections by the defendant. The defendant had gone through the marriage ceremony with plaintiff’s husband, and claims to have done so, believing him to be unmarried. The defendant resides in Livingston county, and that ceremony was performed there. The plaintiff resides in Warren county. The defendant, to obtain the change of place of trial, stipulates to .admit plaintiff’s marriage, and her receiving the affection of her husband, and support from him, etc. The alleged cause of action arose in- Livingston county, because it is there that defendant is averred to have enticed the plaintiff’s husband, and to have married him. Evidently, the questions to be litigated are whether defendant knew Blake to be a married man, and whether, with such knowledge, she enticed said Blake, and alienated his affections from plaintiff. The defendant admits that she had heard rumors that Blake was married, and that she wrote to him to inquire how this was. She avers that he told her he was divorced, on which she said that she could not marry him; 'that afterwards he told her his wife was dead, and thereupon she married him. It appears that a former action for the same cause was commenced in 1886, in which the complaint was dismissed. The place of trial was Livingston county. If the defendant is liable in this action, then it would follow that she had been guilty of a crime under section 801, Pen. Code. For such a crime she would be tried, if anywhere, in Livingston county. It would seem fair, unless there were strong reasons to the contrary, that she should be allowed to defend this action in the same county. In motions of this kind, it is well known that the parties seldom need all the witnesses whose names are given in the affidavits. We must act upon this knowledge, and upon our judgment in regard both to convenience of the witnesses who will be called, and also in regard to the other matters mentioned in rule 48, and “the ends of justice.” Subdivision 8, § 987, Code Civil Proc. We are reluctant to interfere with the discretion exercised by the court below in cases of this kind; but in the present instance, on a careful examination of the papers, and a consideration of the number of *75witnesses who will be called, we think that defendant’s motion should be granted. Order reversed, with $10 costs and printing disbursements, and motion granted, with $10 costs; all to abide the event. All concur.