126 N.W. 239 | N.D. | 1910
The complaint of plaintiff alleges, in substance, that in the month of August, 1903, the plaintiff was the owner and in possession of a certain tract of land particularly described in Logan county, N. D.; that on or about the 29th day of August, 1903, plaintiff sold to the defendants the said described land at the agreed price of $1,400, no part of which has ever been paid except the sum of $400; that on said day plaintiff made and delivered to defendants a warranty deed of said land; that on the same day defendants as evidence of their indebtedness to plaintiff, for the unpaid balance of the purchase price of said land, made and delivered to plaintiff a promissory note for the sum of $1,000 with interest at the rate of 6 per cent, per annum for two years from date and 8 per cent, per annum thereafter until paid; that on the same day, for the purpose of securing the indebtedness aforesaid of defendants to plaintiff, defendants made, executed, and delivered to plaintiff an instrument in writing, whereby they mortgaged to plaintiff the said land in question, which mortgage provided that, upon failure of the defendants to pay when due the said sum of $1,000, the said mortgage might be foreclosed, and the said premises sold for the satisfaction of said indebtedness, that no part of said indebtedness has ever been paid and that the entire sum of $1,000 with interest as described in said promissory note, is due and payable. The prayer for relief is in these words: “The plaintiff demands judgment against the defendants for the sum of $1,000, and interest as hereinbefore stated, and for the foreclosure of the said mortgage and the sale of said premises to satisfy the indebetedness aforesaid, together with the costs and disbursements of the plaintiff, and any other and further relief the plaintiff may be entitled to.” A summons, designating in its margin the county of Richland as the venue of the action, was issued, and with the complaint was served
On September 8, 1908, the defendants appeared jointly by counsel, and made demand in writing that the place of trial of the action be changed from the county of Richland in the Fourth judicial district of the state of North Dakota to the county of Logan, in the Fifth judicial district of said state, and with such demand served an affidavit of defendant’s counsel, alleging as a reason for such demand that the real property mentioned in the complaint and on which plaintiff seeks to foreclose the mortgage referred to is situated in the county of Logan, in the Fifth judicial district of the state. This demand was followed by a motion to change the place of trial of said action, which was heard before the district court on September 14, 1908, and an order made changing the venue from Richland to Logan county. On September 16, 1908, defendants served a joint answer containing a general denial of the allegations of the complaint. Plaintiff appeals from the order of the district court changing the venue from Richland to Logan county, alleging as error that such action was unwarranted by the facts presented upon defendants’ application for such change. It is apparent that, if the action is one for the foreclosure of a mortgage of real property, it must on proper and timely demand of the defendants, be tried in the county in which the real property is situated. Section 6827, Rev. Codes 1905. On the other hand, if it is simply a personal action for the recovery of money only, the defendants being nonresidents, it may be tried in any county of the state which plaintiff may see fit to designate in the summons. Section 6829, Rev. Codes 1905.
The point presented is not by any means clear or free from doubt. ’ This court in its consideration of the same is somewhat embarrassed by the fact that, while the plaintiff and appellant has filed a brief and is represented on this appeal by able counsel, the defendants, after service of their answer, have not seen fit to further appear or to assist this, court in any manner in reaching a correct conclusion. There is therefore laid on this court the double duty of carefully investigating the merits of the points of exception presented by plaintiff, and, on the other hand, protecting the defendants from the results of any improvident or inconsiderate action when they' do not manifest sufficient interest in the event
With these considerations in mind, we think it follows that the place of trial of the action must be determined upon the face of the complaint from a merely superficial survey of the character of the action that plaintiff had commenced. From the preliminary process of this action and inferences naturally and unavoidably arising from the incidents of its initiation, plaintiff could only have in
The order of the district court changing the venue from Rich-land county to Logan county is therefore affirmed.