Page:North Dakota Reports (vol. 48).pdf/1371

 31. An order setting aside a stipulation for dismissal of an action is appealable under subdivision 4, Sec. 7841, C. L. 1913, as an order which “involves the merits of an action or some part thereof.” Lilly v. Haynes Co-op. Coal Mining Co., 937.

32. Section 7418, Comp. Laws 1918, provides that the court may change the place of trial of a civil action: * * * (2) “When there is reason to believe that an impartial trial cannot be had” in the county in which the action was brought; and (3) “When the convenience of ‘witnesses and the ends of justice would be promoted by the change.” In this action the defendant asked for a change of venue on both of these grounds. The plaintiff objected to the sufficiency of the moving affidavits, coupled with a request that in event the objection was overruled, that he be afforded an opportunity to submit counter-affidavits. The trial court, in effect, sustained the objection on the ground that he could not “agree with counsel for the defendant that he cannot have a fair and impartial trial” in Hettinger County. It is held that the trial court erred in holding that the showing made was insufficient to require the granting of the application for a change of the place of trial, and the order denying such application is therefore reversed, and the trial court directed to hear the motion anew, and afford both parties reasonable opportunity to present such additional showing as they may desire to present. Lilly v. Haynes Co-op. Coal Mining Co., 937.

34. That the plaintiff is entitled to a new trial as to all of the defend- contract of indemnity for the payment of the note to the bank by former parties interested therein and, concerning their wealth, is prejudicial error. First Nat. Bank v. Davidson, 944.

34. That the plaintiff is entitled to a new trial, as to all of the defendants by reason of prejudicial error in the record. First Nat. Bank v. Davidson, 945.

35. For reasons stated in the opinion, it is held the court did not err in directing the jury to return a verdict of dismissal of the action, which result was in effect the same as if a motion had been properly made at the close of all the evidence for a dismissal of the action on the ground that there was no evidence to sustain plaintiff’s cause of action; though the reason for the directing of the verdict was based on an erroneous motion of the court, the result arrived at was right. Bruffarts v. Ober et al., 997.

36. A party who asserts error on appeal must show the existence thereof clearly and affirmatively from the record itself. Halstead v. Mo. Slope Land and Inv. Co., 1001.

37. All doubtful interpretation will be resolved in favor of the validity of the action of the trial court, and where, on any reasonable contingency in the state of the record, the decision below might have