Page:North Dakota Reports (vol. 48).pdf/820

 interest for over ten years upon the amount found by the jury.

Opinion filed Jan. 25, 1922. Rehearing denied Feb. 20, 1922.

Action in District court, Pierce county, Buttz, J.

Defendant has appealed from the judgment.

Judgment modified.

Per Curiam opinion.

F. B. Lambert, for appellant.

E. T. Burke, for respondent.

Statement.

Per Curiam. This is an action for the conversion of wheat. Judgment was entered for the plaintiff upon a special verdict. From such judgment the defendant has appealed. The following facts appear from the record: The plaintiff seeks recovery for wheat converted in September, 1909. This action was started January 26, 1914. The answer was served February 16, 1914. Notice of trial in Ward county was served July 13, 1914. Defendant left with the clerk of the district court in Ward county, on July 18, 1914, an affidavit for change of venue based on the prejudice of the judge and of the county. No papers had then been filed with the clerk, and the defendant states that the motion papers for a change of venue were left with the clerk to be filed immediately upon filing of plaintiff's papers. On the back of these papers is a statement by the clerk: “Case not filed up to date, January 6, 1917. Returned unfiled.” Such motion papers were later filed with the clerk in Ward county November 2, 1918. Prior to that time the plainiff, on November 9, 1917, had served a new notice of trial in Ward county and a note of issue. On December 18, 1918, the trial judge ordered the place of trial of the action to be transferred go Pierce county. The application and order changing the place of trial was made without notice to, or participation by, the plaintiff, as the trial judge subsequently found. On February 7, 1919, the complaint, notice of trial, note of issue (filed in the district court of Ward county, November 9, 1917), and the motion papers