171 N.W. 245 | N.D. | 1918
This is an action for false imprisonment commenced in the district court of Stutsman county. The defendant is a resident of Barnes county, and the summons and complaint herein were served by leaving copies thereof at defendant’s dwelling house in said Barnes county on January 4th, 1918. The defendant was in Canada at the time the papers were served. On his return he retained attorney M. J. Englert of Valley City, and informed him that the papers had been served on January 11th, 1918. On February 6th, 1918, Englert prepared and mailed to plaintiff’s attorney a demand for change of place of trial, supported by an affidavit showing that the defendant was a resident of Barnes county. Englert, also, requested plaintiff’s attorney to stipulate a change of venue and inclosed a stipulation providing therefor. These papers were received by plaintiff’s attorney on February 7th, 1918, and he returned them on the same day with a letter stating in effect that inasmuch as the time for answering had expired he could not sign the stipulation. The defendant thereupon made an application to be relieved from the default and to be permitted to serve and file an answer; and that the place of trial be changed from Stutsman county to Barnes county. The trial court granted the application, and plaintiff has appealed.
No-complaint is made of, or error predicated upon, that portion of the order which permitted the defendant to serve and file an answer. The sole error assigned is, that the court erred in ordering a change of the place of trial. The instant action is one properly triable in the county where the defendant resides. Comp. Laws 1913, § 7417. But the statute provides that “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.” Comp. Laws 1913, § 7418. And the appellant contends thát inasmuch as the time for answering had expired, the defendant was not entitled to demand, and the court was not authorized to order, a change of place of trial. In support of this contention appellant cites Irwin v. Taubman, 26 S. D. 450, 128 N. W. 617. The case cited was considered and disapproved by this court in McCarty v. Thornton, 38 N. D. 551, 165 N. W. 499. And our views have undergone no change since McCarty v. Thornton, was decided.