{
  "id": 2739283,
  "name": "H. E. ASKEW, Plaintiff-Appellant, v. FORT SUMNER IRRIGATION DISTRICT, Defendant-Appellee",
  "name_abbreviation": "Askew v. Fort Sumner Irrigation District",
  "decision_date": "1968-11-22",
  "docket_number": "No. 200",
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  "last_updated": "2023-07-14T18:21:18.946358+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "SPIESS, C. J, and OMAN, J, concur."
    ],
    "parties": [
      "H. E. ASKEW, Plaintiff-Appellant, v. FORT SUMNER IRRIGATION DISTRICT, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "OPINION\nARMIJO, Judge.\nThe issue presented for review is appellant\u2019s contention that error was committed by the trial court in denying his motion for change of venue.\nAppellant contends that filing of his motion before the jury was impaneled was timely because the facts upon which he relied in support of his motion came to his knowledge immediately prior to trial. Also, that since he asked for change of venue to a county within the Tenth Judicial District, he was not required to file his motion on or before the first day of the next succeeding term of court as. prescribed by \u00a7 21-5-3(B), N.M.S.A.1953, (Supp.1967).\nBy affidavit filed in support of his motion, appellant asserts he could not receive a fair trial in DeBaca County because a large number of the inhabitants of the county are members of appellee irrigation district and these members exert undue influence over the minds of the inhabitants of the county with resulting prejudice to him due to the nature of the case.\nAppellee resisted the motion on the grounds it was not timely filed.\nWe conclude the trial court ruled correctly in denying change of venue.\nOn April 6, 1967, appellant, a resident of DeBaca County and member of appellee\u2019s irrigation district, filed his complaint for damages to his property allegedly sustained in August 1966, as a result of appellee\u2019s negligence. The case was at issue May 8th. In June appellant moved to Oklahoma. He was in DeBaca County one day in October when his deposition was taken and did not return until December 10th, the day before trial was to begin following two weeks notice of trial. A jury was impaneled in DeBaca County in September.\nOn the issue of timeliness of filing of the motion, appellant contends that he gained knowledge of the prejudice shortly before the time the motion was filed.\nThe record is silent on what efforts, if any, appellant made to ascertain the community sentiment prior to the eve of trial. Likewise it fails to reveal any circumstances which might have had the effect of creating or giving rise to the claimed prejudice shortly before trial as was the situation in State v. Shawan, 77 N.M. 354, 423 P.2d 39 (1967). There our Supreme Court considered the issue presented by a motion for change of venue filed on the morning of the day of trial based on facts which arose from adverse publicity published the day before and concerning the trial..\nIn his affidavit appellant states that the members of the Fort Sumner Irrigation District feel that if he prevailed, the judgment would be against themselves. By this allegation it is noted that the fact which is the basis of the claim of prejudice came into being when he filed his complaint and his assertion of not having learned of its prejudicial effect until just before trial was to begin, does not excuse the need for filing of the motion earlier. Appellant\u2019s application came too late. In order to be timely, a motion for change of venue must be offered at the earliest practical time. Johnson v. United Motor Coach Co, 66 Ill.App.2d 295, 214 N.E.2d 326 (1966); Stickler v. McCarthy, 64 Ill.App. 2d 1, 212 N.E.2d 723 (1965). See also Newman v. County of Sonoma, 56 Cal.2d 625, 15 Cal.Rptr. 914, 364 P.2d 850 (1961).\nThe record amply supports the conclusion the motion was not timely filed. The jury was present, as were appellant\u2019s ten or eleven witnesses, two of whom were from out of state. Compare Fuller v. Edwards, 180 Va. 191, 22 S.E.2d 26 (1942).\nHaving concluded that the motion was not timely filed, a hearing thereon was not required. State v. Aull, 78 N.M. 607, 435 P.2d 437 (1967), and discussion on the applicability of \u00a7 21-5-3, supra, where change of venue is sought from one county to another within the judicial district becomes unnecessary.\nThe judgment is affirmed.\nIt is so ordered.\nSPIESS, C. J, and OMAN, J, concur.",
        "type": "majority",
        "author": "ARMIJO, Judge."
      }
    ],
    "attorneys": [
      "Harry L. Patton, Calvin R. Neumann, Clovis, for plaintiff-appellant.",
      "Robert F. Turner, R. D. Mann and John W. Basset, Jr., Atwood & Malone, Roswell, John Humphrey, Jr., Fort Sumner, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "448 P.2d 183\nH. E. ASKEW, Plaintiff-Appellant, v. FORT SUMNER IRRIGATION DISTRICT, Defendant-Appellee.\nNo. 200.\nCourt of Appeals of New Mexico.\nNov. 22, 1968.\nHarry L. Patton, Calvin R. Neumann, Clovis, for plaintiff-appellant.\nRobert F. Turner, R. D. Mann and John W. Basset, Jr., Atwood & Malone, Roswell, John Humphrey, Jr., Fort Sumner, for defendant-appellee."
  },
  "file_name": "0671-01",
  "first_page_order": 703,
  "last_page_order": 704
}