Page:Compiled Laws of the State of North Dakota 1913 vol II.pdf/50

== CODE CIVIL PROCEDURE ==

Of Civil Actions §§ 7417-7418
§ 7417. Where any party resides. In all other cases, subject to the power of the court to change the place of trial as provided by statute, the action shall be tried in the county in which the defendant or some of the defendants reside at the time of the commencement of the action; provided, if such county is attached to another county for judicial purposes, the action shall be tried in the latter county; and if none of the defendants shall reside in the state, the action may be commenced in any county which the plaintiff shall designate in the summons.

[R.C. 1905, § 6829; C. Civ. P. 1877, § 94; 1881, ch. 35, § 1; R.C. 1895, § 5243.]

Maker entitled to change place of trial to his county in saction on note where payee indorsed same without consideration. George v. Kotan, 18 S.D. 437, 101 N.W. 31.

Makes no distinction between defendants who are natural person and corporations so far as it regulates place of trial. Ivanusch v. Great North R. Co., 26 S.D. 158, 128 N.W. 333.

Venue of action against domestic corporation is place where its governing power is exercised and controlled by its board of directors. ''Mullen v. Northern Acci. Ins. Co.'', 26 S.D. 402, 128 N.W. 483.

Action to recover money only brought against nonresident may be tried in any county. Viets v. Silver, 19 N.D. 445, 126 N.W. 239.

As to similar provision in Cal. Code Civ. Proc., § 395, see Smith v. Smith, 88 Cal 572 26 Pac. 356; Buch v. Eureka, 97 Cal. 135, 31 Pac. 845.

§ 7418. Defendant must ask change. 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 cnnot be had therein.

3. When the convenience of witnesses and the ends of justice would be promoted by the change.

[R.C. 1905, 6830; C. Civ. P. 1877, § 95; R.C. 1899, § 5244.]

Order granting change of venue is appealable as affecting merits of action. Robertson Lumber Co. v. Jones, 13 N.D. 112, 99 N.W. 1082.

Demand for change of venue should be made before expiration of time to answer. Searles v. Lawrence, 8 S.D. 11, 65 N.W. 34.

Right to change absolute on proper showing. Smail v. Gillruth, 8 S.D. 287, 66 N.W. 452.

Time within which application must be made is thirty days provided by code within which defendant may answer. Iwarin v. Taubman, 26 S.D. 450, 128 N.W. 617.

Change of venue. 74 Am. Dec. 241.

Petition for change of venue as a contempt. 9 L.R.A. 566.

Prohibition against court proceeding with case in which it erroneously denied a change of venue. 2 L.R.A. (N.S.) 395.

Mandamus to prevent change of, from court having exclusive jurisdiction. 2 L.R.A. (N.S.) 568.

Use of superintending control over inferior tribunal to compel change of venue. 20 L.R.A. (N.S.) 951.

Motion to change venue, as extending time to plead. 47 L.R.A. (N.S.) 857.

As to similar provisions in Cal. Code Civ. Proc., § 396, see Estrada v. Orena, 54 Cal. 407; Byrne v, Byrne, 57 Cal. 348; Cook v. Pendergast, 61 Cal. 72; Remington S. M. Co. v. Cole, 62 Cal. 311; Nicholl v. Nicholl, 66 Cal. 36, 4 Pac. 882; Howell v. Stetefeldt Furnace Co., 69 Cal. 153, 10 Pac. 390; Ah Fong v. Sternes, 79 Cal. 30, 21 Pac. 381; Powell v. Sutro, 80 Cal. 559, 22 Pac. 308; ''Fresno Nat. Bank v. Superior Court'', 83 Cal. 491, 24 Pac. 157; Palmer v. Barclay, 92 Cal. 199, 28 Pac. 226; Buck v. Eureka, 97 Cal. 135, 31 Pac. 845; Bagley v. Cohen, 121 Cal. 604, 53 Pac. 1117; Herd v. Tuohy, 133 Cal. 55, 65 Pac. 139; Quint v. Dimond, 135 Cal. 572, 67 Pac. 1034; Fletcher v. Maginnis, 136 Cal. 362, 68 Pac. 1015; Wood, Curtis & Co. v. Herman Min Co., 139 Cal. 713, 76 Pac. 588; Sutter County v. Sargent, 1 Whiting, Cal. App. Dec. 485; in Cal. Code Civ.