164 N.W. 296 | N.D. | 1917
The question here presented involves the place of trial of a civil action, a demand for a change of venue for the trial of such action having been made and served prior to the time fixed by law for the defendant to answer the complaint of the plaintiff; to wit, thirty days had expired.
' The complaint alleges a cause of action against H. O. Alcox, as principal, and Edwin A. Engebretson and John E. McGibbon, as sureties, who were principal and sureties on an attachment bond. At the time of bringing the action in which the warrant of attachment was issued and the attachment bond was given, the plaintiff was the owner of lot one (1), block 14 of the village of Moffit, in Burleigh county, North Dakota, upon which property the plaintiff had for several years en-. gaged in general hardware, farm implement and merchandise business, the stock of which was alleged to be worth $1,400. It was alleged that the sheriff, in serving said warrant of attachment in such suit, entered upon plaintiff’s property, fastened the doors and windows of the building, closing the same, and damaged the said real estate, seized and levied upon plaintiff’s stock of -merchandise, hardware, and farm implements. This action is brought on the attachment bond to recover for the damages to such real estate. All of the defendants reside and have their domicil in the city of Eargo, county of Gass, North Dakota. Plaintiff resides and has his family in Burleigh county, North Dakota.
Before the time of answering expired, the defendants’ attorney made and served upon the attorneys for plaintiff after the complaint had been served upon them, and prior to the time for answering had expired, that is, the thirty-day period allowed by law for the defendant to answer the complaint of the plaintiff, a demand in writing for the change of the place of trial of such action from Burleigh county to Cass county, under § 7417, Compiled Laws of 1913, which is as follows: “In all other cases, subject to the power of the court to change the place of trial
In connection with this ease it is also necessary to refer to § 7418, which is as follows: “If the county designated for that purpose in the ■complaint is not the proper county, the action may, notwithstanding, be tried therein, unless the defendant before the time for answering expires demands in writing that the trial be had in the proper county and the place of trial be thereupon changed by consent of the parties, ■or by order of the court as provided in this section. The court may •change the place of trial in the following cases:
“1. When the county designated for that purpose in the complaint is not the proper county.
“2. When there is reason to believe that an impartial trial cannot be had thereim
“3. When the convenience of witnesses and the ends of justice would be promoted by the change.”
The provisions of § 7415 are invoked by the plaintiff in this action, which section reads as follows: “Actions for the following causes must be tried in the county in which the subject of the action or some part thereof is situated, subject to the power of the court to change the place of trial in the cases provided by statute:
“1. For the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest, and for injuries to real property.”
The remainder of such section has no application.
The appellant claims that the action at bar is one of recovery for injuries to real property. With this contention we cannot agree. The .action is one upon an attachment bond.
The main element of damages, if any, in plaintiff’s cause of action upon which damages were based, is the seizing and levying upon plaintiff’s stock of merchandise, hardware, and farm implements, and the ■closing of plaintiff’s business, and the alleged destruction of the same by
The motion in the case at bar for a change of venue to the proper
The order of the District Court is therefore in all things affirmed, with costs.