171 N.W. 849 | N.D. | 1919
Appeal from the district court of Cass County, North Dakota, A. T. Cole, Judge.
This action is one to recover upon a promissory note for $193.50. The action was instituted in the district court of Cass county on November 12, 1917, by the service of the summons upon each of the defendants. The defendant Pioneer Stock Company was domiciled at Courtenay, Stutsman county. The defendant Tucker had been a resident of Foster county for thirty-three years. The note in question was signed “Pioneer Stock Company by H. N. Tucker, President.” The complaint was in the ordinary form. The defendants being domiciled or residing in Stutsman county, it was the proper county in which to try the case. The county of Cass designated in the complaint was not the proper county, though the action could be tried therein unless the defendant, before the time of answering expired, demanded in writing that the trial be had in the proper county and the place of trial be changed either by the consent of the parties or by order of the court, as and for the reasons, or some of them, as provided in § 7418, Compiled Laws 1913. H. N. Tucker made affidavit dated December 12, 1917, in which he set forth that the Pioneer Stock Company is domiciled at Courtenay, Stutsman county, North Dakota, and that it had never been domiciled in any other place, and that the affiant Edwards had been a bona fide resident of Stutsman county for thirty-three years, and had never been a resident of Cass county. The affidavit further showed that' the action was brought in the wrong county and demanded a change of venue of the action from Cass county to Stutsman county. If the defendants in time made a proper demand for a change of venue, then the district court of Cass county had no jurisdiction to enter the judgment in this case. Herein lies the principal contention. Summons having been served on the 12th day of November, 1917, the defendants had until the expiration of the 12th day of December within which to demand change of venue; for their right to answer did not expire until that time. George H. Stillman made affidavit in which he positively stated under oath that on the 12th day of December, 1917, in the village of Courtenay, Stutsman county, North Dakota, he prepared an answer to the complaint in said action, and also prepared a demand for change of venue from the district court of Cass county to the district court of Stutsman county, and also prepared a stipulation for a change of venue
Section 7952, Compiled Laws 1913, is as follows: “Service by mail may be made when the person making the service and the person on whom it is to be made reside in different places, between which there is a regular communication by mail.”
The attorneys for the plaintiff reside in Fargo; attorney for defendant, Mr. Stillman, resides at Carrington. Stillman in his affidavit did not show that he resided at Carrington. The counter affidavit on behalf of the plaintiff made by Mr. Tenneson clearly shows Stillman’s place of residence. It is a fact that the party sending the notice and the party to whom it was sent reside in different places between which there is a regular communication by mail which entitled the sender of the notice to send it by mail, but it does not follow from that, that the notice must be mailed at the postoffice in the place where the sender resides.
Section 7953, Compiled Laws 1913, reads thus:
“In case of service by mail, the paper must be deposited in the post-office, addressed to the person on whom it is to be served, at his place of residence, and with postage prepaid.”
This affidavit of Stillman is not controverted. While it is true the envelop in which the demand for change of venue and other papers were inclosed bears the postmark at Courtenay of date of December 13th at 7 a. m. of said day, this does not, however, establish the point of time when the letter was deposited in such postoffice. There is nothing to show what time the letter was deposited in the postoffice at Courtenay except the affidavit of Stillman, and it is entirely uncontroverted and must he accepted as true. It thus appearing that the demand for change of venue having been served in time by mail upon the plaintiffs, the right of the defendants in this case to a change of venue became abso
It is entirely unnecessary to discuss any other feature of this case. The court did not have jurisdiction to enter the judgment, and it should make an order vacating its judgment and make an order changing the place of trial to the proper county. It is so ordered. The order appealed from is reversed; the ease is remanded for further proceedings not inconsistent with this opinion. Appellant is entitled to statutory costs.
