Plaintiff gave his promissory note to defendant Montgomery, a resident of Tripp county, who sent it to defendant bank for collection. Such bank was located in Minnehaha county. Plaintiff 'brought this actiоn in Minnehaha county, and, while praying for the possession of the note or, in case possеssion could not be had, for alternative relief in money judgment for face value of note, thе allegations of his. complaint set forth facts which would have entitled him to equitable relief by wаy of cancellation of the note. The defendant Montgomery moved that the venue of sаid action be changed to Tripp county, and, in support of such motion, submitted her affidavit showing hеr residence ; alleging that this action, while termed one in replevin, was in truth “simply an action in equity, having for its purpose the cancellation of the promissory note;” and that she was entitled tо have the place of trial thereof changed to tibe county of her residence. Plaintiff submitted an answering affidavit setting forth that the real purpose of such action was1 to gain possession of the note, and was brought in Minnehaha county because of the fact that the physiсal possession of such note was in the defendant bank in
“Actions for the following causеs must 'be tried in th.e county in which the 'subject of the action, or some part thereof, is situated, subjeсt to the power of the court to change the place of trial in the cases prоvided by statute. * * *
“4. For the recovery of personal property distrained for any cause.”
Aрpellant contends that the above section has ho application to the faсts of this case, as it idoes not appear by the complaint that this personal property was “distrained.” She says, “We are unable to discover any connection between the situation disclosed in this case and .the common-law remedy of distress;” and she seems to argue that, because it does not appear -by the complaint that 'defendant took this- note as а distress, it does not appear that the above section has any application. It is certainly true that the aotion of replevin- “originaly lay for the purpose of recovеring chattels taken as a distress.” 'Cobbey on Replevin, § 1. It is in this narrow sense that the word “distrained” is used in said section 99? No one will dispute but that the action of replevin has been extended' so that, by if, one can recover the possession of any personal property to the possession of which 'he is entitled, and this regardless of how the other party came into possession thereof. If we should hold that the word “distrained1” as used in said section 99 -has the restricted meaning claimed by appellant, then we must hold that the action of replevin, as known to the early commоn law, must be brought in the county -where the property was seized in distress proceedings, but that, where оne seeks to replevin property, the possession of which had not been obtained frоm plantiff through distress proceedings, plaintiff, must bring his action in the county of the residence of the dеfendant, regardless of the situs of the property which is the subject of the action. We do not believe this- to have been the intent of the lawmakers; but bélieve rather that the word “distrained,” which undoubtedly was brought into the statute because of its relation to the old common-law action of rеplevin, has itself, by its use in this section and in view of the extended use of the action of replevin, expanded in its
“The right to maintain an action in the nature of replevin in a given-forum does not depend upon the place -where the property is taken), buit resits solely upon- the county in w-hich it is unlawfully held at the timе the action is instituted. Such action is therefore local, and can only be prosecuted in the county- where the property is distrained.”
This was undoubtedly the view of the territorial court as -disсlosed by its opinion in Bonesteel v. Gardner, I Dak. 372 (356),
The order appealed from is affirmed.