19 N.W.2d 569 | N.D. | 1945
Plaintiff has brought two suits upon the same cause of action. In the first suit the Valley Investment Company is the sole defendant. In the second suit the Northwestern Trust Company and Fred L. Goodman are joined as additional defendants. The cases are here for the third time upon appeals from preliminary orders. See Swiggum v. Valley Invest. Co. ante, 396,
Error is predicated first, upon the assertion that the court had no power to make separate orders in the two actions after those actions had been consolidated by the acts of the parties and their attorneys, and second, that the motion for a change of place of trial should have been granted upon the merits.
Upon the first contention it is sufficient to say it is clear that the two actions have not been consolidated by the acts of the parties or their attorneys. *767
It is true that the acts of the attorneys have not always been consistent but at each stage of the proceedings in these two actions one or the other of the attorneys has objected to a consolidation. In the first instance it was the attorney for the plaintiff who opposed, and appealed from, an order allowing the posting of a single bond to release the garnishee in both actions. Swiggum v. Valley Invest. Co. ante, 396,
Plaintiff's contention that it was error for the trial court to refuse to grant the motion for a change of the place of trial rests upon his claim that the "controlling allegations" of his attorney's affidavit in support of the motion were not denied. He states that he was entitled to the allowance of the motion by defendants' default.
Neither the defendant, Goodman, nor his attorney denied that they were prominent, influential and persons of wide acquaintance in Grand Forks County. They did deny that either of them had done any acts or circulated any rumors which would tend to prejudice the plaintiff in the eyes of the people of the county. The defendant, Goodman, also stated that "he does not know of any friends of his who will decide a lawsuit in his favor merely on account of friendship, or `to show fealty to him' as stated in the affidavit of George D. Smith."
An application for a change of the place of trial of an action upon the ground that an impartial trial cannot be had within the county in which the action was brought is addressed to the discretion of the trial court, and the ruling of the trial court thereon will not be interfered with unless a manifest abuse of discretion appears. Langer v. Courier *768
News,
CHRISTIANSON, Ch. J., and NUESSLE, BURR and MORRIS, JJ., concur.
*1