145 N.W. 542 | S.D. | 1914
Plaintiff brought this action in the circuit court of Minnehaha county, and defendant claims that, under section 101/ C. C. P., 'and the holding of this court in the case of Mullen v. Accident Ins. Co., 26 S. D. 402, 128 N. W. 483, it had an absolute right to have the place of trial changed from that county to the county of Sanborn,' and that it took the proper steps to procure an order for such change from, the circuit court. The circuit court denied the motion for change of venue, and if is from such order of denial that this appeal was taken. It appears that, before answering and before the time for answering had expired, defendant served upon plaintiff’s attorney two papers, attached the one to the other; one an affidavit, dated nearly a month later than rhe date of service of summons and complaint, setting forth the fact that the defendant was a domestic corporation with its principal place of business in Sanborn county, the other a notice, of motion for an order changing the place of trial. The notice stated that it was 'based upon the attached affidavit. The affidavit contained a demand that the place of trial of said action be changed ■to the circuit court of Sanborn county. Counsel for plaintiff accepted service, of these papers. Thereafter, and upon the same date, counsel for plaintiff was presented with a written stipulation stipulating that the venue of said cause might be changed to San-born county. This stipulation he refused to sign. It was upon a showing- of all the above facts that the trial court refused to grant the change.
It follows from' the above that, when a defendant moves for a change of venue, the -affidavit upon- whioh h-is motion is made must show that he has already served upon plaintiff the written demand, and that -defendant, though given an 'opportunity to consent to such change in -one or the other of the method's provided by the statute, has neglected or refused to consent to such change
The order appealed from -is affirmed.