Page:North Dakota Reports (vol. 48).pdf/389

 upon a final settlement, and the tender, the deposit, and the refusal of such amount.

The defendants, in proper time, made a demand for a change of the place of trial from Walsh county to Grand Forks county. Accompanying such demand, a showing by affidavits was made that the defendant Springen was and had been a resident of Grand Forks county for more than three years, and that the defendant Trust Company during the fast ten years had had its office and principal place of business in Grand Forks county. The plaintiff submitted a counter affidavit that the Trust Company transacted business in Walsh county. Upon hearing the trial court ordered the place of trial changed to Grand Forks county. The plaintiff has appealed from such order.

The plaintiff maintains that the provisions of chap. 3, Laws 1919, apply. The material portions thereof read, viz.:

“Actions for the following causes must be tried in the county in which the subject of the action or some part thereof is situated, subject to the power of the court to change the place of trial in the cases provided by statute; * * *

“6. All actions against any domestic corporation shall be tried in any county or judicial subdivision designated in the complaint and in which the defendant corporation transacts business.”

The plaintiff further contends that, the venue being properly laid in Walsh county against the Trust Company, the defendant Springen is not entitled to a change, since he is properly joined as a party defendant.

These contentions may be answered by a consideration of plaintiff’s cause of action. It will be noted that, as against Springen, it is for a misappropriation of moneys, a cause sounding in tort. As against the Trust Company, it is an action on a contract of guaranty. It is not alleged that Springen is a party to this contract of guaranty. The issues upon the pleadings determinative of the liability of Springen and the Trust Company are not necessarily the same. Further, it is plain that the liability of Springen must’ first appear: before the contract of guaranty is operative. It may be admitted that the cause of action against the Trust Company alone, upon the showing made, would properly be triable in Walsh county. There exists, however, in addition, a cause of action against Springen. The statute does not provide, in terms, that all actions against any domestic corporation, whether joined with’ other actions or