288 N.W. 459 | S.D. | 1939
Defendants have appealed from an order of the trial court denying a change of venue to the place of residence of the defendants. The action was brought in Minnehaha County. In his complaint the plaintiff stated his cause of action in substance as follows: That theretofore the defendants had purchased certain personal property located in Minnehaha County from plaintiff under a conditional sales contract, a copy of which was annexed to the complaint; that the defendants had defaulted in the payment of the purchase price; that no proceedings had been had at law for the recovery of the sums remaining due; that the defendants abandoned and surrendered the property to plaintiff, and that plaintiff had peaceably repossessed said property and was in possession thereof. In his prayer plaintiff asked that the contract be foreclosed, that the court determine the actual amount due, that the property be sold and applied thereon, and that the defendants be required to pay any deficiency.
[1] Based upon the holding of this court in Aldrich v. Public Opinion Pub. Co. et al.,
[2] That an order denying a change of venue is an appealable order was determined by the territorial court, White v. Chicago, M St. P. Ry. Co., 5 Dakota 508, 41 N.W. 730, and such an order has been treated as appealable in numerous decisions of this court. Hawthorne v. Arlt et al.,
[3] The statutes of this state fix a definite place of trial for certain actions, render the venue optional with the plaintiff in certain other actions, and provide "In all other cases the action shall be tried in the county in which the defendant or defendants, or any of them, shall reside at the commencement of the action * * *." §§ 2325-2327, Rev. Code of 1919, SDC 33.0301-33.0304. Under the showing appearing *39
in the record it can not seriously be questioned but what these defendants resided in Brule County at the commencement of this action. A single provision of the statute is called to our attention and urged upon us as fixing the place of trial of this action in Minnehaha County, the place of location of the personal property involved. It is said that this is an action "for the recovery of personal property distrained for any cause" within the terms of § 2325, Rev. Code of 1919, SDC 33.0301. This contention is largely based upon the holding of this court in Wolfe v. Montgomery et al.,
Plaintiff seeks to foreclose a conditional sales contract by action. We do not consider or determine whether the complaint states a cause of action. Suffice it to say that, in view of the allegations of this particular complaint dealing with the possession of the property involved, if a cause of action is stated, it is one which, on the demand of defendants, must be tried at the place of their residence under the terms of § 2328 Rev. Code of 1919, SDC 33.0305.
[4, 5] Plaintiff contends that defendants waived their right to a change of venue by serving their answer before applying to the court for a change of venue. The statute provides (§ 2328, supra, SDC 33.0305): "If the county designated for that purpose in the complaint be not the county in which the defendant resides, the action may, notwithstanding, be tried therein unless the defendant, before the time for answering expires, demand in writing that the trial be had in the county in which he resides, and the place of trial be thereupon changed by consent of the parties or by the order of the court, as provided in this section." In a case wherein it was contended that a stipulation extending the time to answer operated to extend the period within which a demand and application for change of venue might be made, this court construed the phrase "before the time for answering expires," as definitely limited to the period of *40
thirty days allowed the defendant by law in which to file his answer. Irwin v. Taubman,
It follows that the order of the trial court must be, and it is hereby, reversed.
All the Judges concur. *41