Page:North Dakota Reports (vol. 48).pdf/703

 The decision of the trial court will not be disturbed on appeal unless the appellate court, from the whole record, can plainly see that the trial court’s discretion was grossly abused. Booren v. McWilliams, 33 N. D. 339; Stockwell v. Hague, 25 N. D. 504; Kramer v. Heins, 34 N. D. 507-512; State v. Gordon, 32 N. D. 31; Territory v. Eagen, 3 Dak. 119; R. C. L. Vol. 27, p. 827.

A party may not use the right to a change of venue simply to prolong litigation. Hudson v. Hanson, 75 Ill. 198; Peoria etc. R. Co. v. Mitchell, 74 Ill. 394; Wheeling v. Black, 25 W. Va. 266; Cook v. Garza, 9 Texas, 358; State v. Matlock, 82 Mo. 455.

“A party applying for a change of venue should do so at the earliest opportunity.” Moss v. Johnson, 22 Ill. 633; Smith v. Pelton Water Wheel Co. 151 Cal. 399; Smith v. Amiss, 30 Ind. App. 530-66 N. E. 501; Ellis v. Sterns, 27 S. W. 222 (Texas) Sumner Co. v. Wellington Township 39 Kans. 137.

“The abuse of discretion’ to justify interference with the exercise of the discretionary power implies not merely error of judgment but perversity of will, passion, prejudice, partiality or moral delinquency.” Citizens St. R. Co. v. Heath, 62 N. E. 107, 29 Ind. App. 395; Stewart v. Stewart, 62 N. E. 1023, 28 Ind. App. 378; People v. N. Y. Cent. R. Co. 29 N. Y. 418

. This is an appeal from an order denying a change of venue. The action is for libel. It was heretofore before this court upon an appeal from an order overruling a demurrer to the complaint. 179 N. W. 909. This court held that the complaint stated a cause of action. The remittitur was filed in the trial court on November 19, 1920. On or about December 29, 1920, an answer was interposed. On March 12, 1921, the defendant made application to change the place of trial from Cass county to some other county upon the ground that ail impartial trial could not be had in that county. On April 16, 1921, Hon. A. T. Cole, the district judge, before whom the motion was heard, made the following order:

“The above-entitled action came duly on to be heard before the court at the chambers thereof, in the courthouse in the city of Fargo, Cass county, N. D., on this 16th day of April, 1921, on motion of defendant for an order changing the place of trial of said action. * * * It is now hereby