18 S.D. 437 | S.D. | 1904
This action upon a promissory note, which it is alleged appellant Jozeph Kotan executed, and which his codefendant A. D. Simmons indorsed, after the payee named therein had assigned the same to respondent, was commenced in the circuit court of Lake county by the service of the summons and complaint upon the indorser at his.residence in Lake county, and upon appellant at his residence in Moody county. Promptly, and before the time for answering had expired, appellant made demand in writing that the trial be had in Moody county, and, upon such demand being refused, a formal application, upon due notice to opposing counsel, was made to the court for an order changing the place of trial to the county of Moody, and this appeal is from an order overruling such motion.
In addition to numerous affidavits used at the hearing, and alleging that the convenience of the witnesses would be promoted by a trial in Moody county, and that respondent had no
As respondent accepted service of the foregoing affidavit, and allowed the same to be read at the hearing without any objection, there is no presumption that the subject-matter thereof was disregarded by the court, and his right to object on the ground that the same was not served with the notice of motion has been waived. Warder, Bushnell & Glessner Co. v. Ingli, 1 S. D. 155, 46 N. W. 181; Hall v. Harris, 2 S. D. 331, 50 N. W. 98; Lindsay v. Pettigrew, 6 S. D. 130, 60 N. W. 744.
So far as material, section 101 of the Revised Code of Civil Procedure of 1903, being section 1, c. 103¡ p. 128, Laws 1901, is as follows: “An action upon a promissory note against per
By virtue of the foregoing enactment appellant had the unassailable right to have the place of trial changed to Moody county, wherein he resided at the commencement of the action, and, while the reasons urged by respondent for retaining the case in Lake county might justify its subsequent removal from Moody county, respondent’s affidavits, in which certain causes for removal are specified, were not entitled to consideration upon the hearing of the present motion. Smail v. Gilruth, 8 S. D. 287, 66 N. W. 452.
Respondent alleges that appellant is the party who executed and delivered the promissory note, and concedes that he is, and at the time of the commencement of the action was a resident of the judicial subdivision of Moody county, where he was served with the summons and complaint. It therefore follows that the application for an order directing that the action be tried in Moody county should have been granted, “subject, however, to the power of the court to change the place of trial in the cases provided by statute.”
The order appealed from is reversed.