
    [No. 15289.
    Department One.
    April 28, 1919.]
    The State of Washington, on the Relation of M. C. Conley, Plaintiff, v. The Superior Court for King County, et al., Respondents.
    
    Prohibition (7)—Venue (14, 24)—Change of Venue—Discretion. Prohibition does not lie to enforce a change of venue to the county of defendant’s residence, where the fact of residence was denied and conflicting evidence offered, and the court was called upon to .exercise its discretion as to changing the place of trial for the convenience of witnesses.
    Application filed in the supreme court March 18, 1919, for a writ of prohibition, restraining the superior court for King county, Allen, J., from proceeding with a cause, after having denied an application for a change of venue.
    Denied.
    
      Coleman & Gable, for relator.
    
      James A. Dougan, for respondents.-
    
      
      Reported in 181 Pac. 50.
    
   Tolman, J.

The relator herein was made a party defendant in a suit brought against himself and the community of which he is a member, in the superior court for King county. Process was served upon him in Skagit county. In due time he appeared in that action by serving and filing a motion to make the complaint more definite and certain, and also a motion for a change of venue to Spokane county, supported by his affidavit that he then was, and for many years had been at all times, a resident of the county last named. The plaintiffs in the original action, for the purpose of resisting the motion for change of venue, filed affidavits tending to show that the defendant in that action, relator here, had been engaged in contracting in Skagit and King counties and elsewhere, for some time, alleging that he had not resided permanently or continuously in Spokane county for at least a year prior to that time, and also alleging that the pending action grew out of a contract entered into and to be performed in King county, that all of the witnesses, both for the plaintiffs and the defendants, excepting only the defendant, who is plaintiff here, resided in King county, and that the public records of King county would bear materially upon the issues and would be required in evidence. Other facts were alleged for the purpose of indicating, that the claim of residence in Spokane county was not well founded. A reply affidavit was filed by the relator here, explaining or denying these last mentioned allegations, and giving in more detail the facts regarding his residence in Spokane county, but in nowise denying the allegations as to the residence of the witnesses, or controverting the allegations that the convenience of witnesses and the ends of justice would be forwarded by the case remaining for trial in King county. The trial court made no finding as to the place of residence of the relator, but entered an order denying the change of venue, upon the ground that the cause of action arose in King county, and the convenience of witnesses required that the case be there tried. Relator herein seeks a writ of prohibition, prohibiting and restraining the superior court for King county from further proceeding in said cause, other than to transfer the same to Spokane county for trial.

We have recently had occasion to re-examine the questions here involved, and to restate the law with reference to changes of venue, in State ex rel. Schlosberg v. Superior Court, ante p. 320, 179 Pac. 865, and no further discussion of the principles involved seems necessary. Were the facts contended for by the plaintiff herein as to his place of residence admitted, and were there no other facts involved, then the discretion of the trial court would not be invoked, and plaintiff would be entitled to have the case transferred to the county of his residence for trial, as a matter of right. State ex rel. Martin v. Superior Court, 97 Wash. 358, 166 Pac. 630, L. R. A. 1917 F 905. But here, not only are the facts as to residence denied, but the question of the convenience of witnesses was a fact upon which the trial court was called upon to pass, and one which appeals peculiarly to the discretion of the court. We said in State ex rel. Schlosberg v. Superior Court, supra:

“If the case did present such question of fact then it invoked discretion which could be exercised either way, and if the superior court for Spokane county erroneously exercised it, it did no more than commit-error in the exercise of a vested jurisdiction. And so with the superior .court for Skagit county, when it had the motions for change of venue before it; it had conflicting facts as to the convenience of witnesses and whether the ends of justice would be best subserved in that county or in another, which invoked the discretion of the superior court for Skagit county, and if it erred in the exercise of that discretion it did no more than commit error, which could not affect its jurisdiction; in other words, if the lower courts erroneously exercise their discretion, not arbitrarily or capriciously, but merely as an error of judgment, denying no inherent justice to any of the parties in the case, then we cannot control that discretion by peremptory writ in advance of appeal, where the question may be finally litigated on a final appeal. ’ ’

The showing as to residence before the trial court, when it passed upon the motion, -was exceedingly meager, based wholly upon affidavits of the defendant seeking the change, and the traversing affidavits contained statements which raised an issue of fact, which, it is true, was hot directly decided. The question of the convenience of witnesses, upon which the ruling was based, is clearly one of fact, and while the facts set forth in the affidavits presented on behalf of the - plaintiffs below were not directly denied by the reply affidavit, yet their force and effect were challenged in the argument here, -and were no doubt so challenged in . the argument below, thus presenting a question of fact which invoked the discretion of the trial court, whose finding thereon we would not be disposed to overrule, however presented. Under such conditions, the writ sought cannot issue.

Writ denied.

Chadwick, C. J., Mount, Mitchell, and Holcomb, JJ., concur.  