Page:North Dakota Reports (vol. 48).pdf/823

 court erroneously, in its order for judgment, permitted plaintiff to recover interest upon the verdict returned by the jury.

Decision.

Upon review of the record we are of the opinion that the contentions of the defendant are without merit, except as hereinafter noted. We are further of the opinion, upon this record, that the trial judge did not err in overruling defendant’s motion to dismiss for neglect, for a period of 5 years after the commencement of the action, to bring the same to trial and to take proceedings for its final determination pursuant to § 7598, C. L. 1913. We in no manner commend the delay in litigation evidenced in this record. It has been needless, and serves, in a manner, as a reproach to the administration of justice. Nevertheless, neglect of the defendant must not be considered plaintiff's neglect. Apparently, much of the delay occasioned in this action has arisen through needless and improper, so termed, legal sparring of the attorneys. The defendant could have avoided much of the delay if it had so desired. At any time after 10 days from the time of the service of the summons and complaint, the defendant could have secured an order from the trial judge, without notice, requiring the same to be filed within a specified time, or in default of compliance, that the action be deemed abandoned. § 7958, C. L. 1913. At any time after issue was joined, the defendant could have placed the action upon the calendar for trial, by serving a notice of trial and filing a note of issue. § 7610, C. L. 1913. As easily, in July, 1914, could the defendant have secured the consideration and determination of the trial court upon its application for change of venue, as it did, in December, 1918. It deemed it expedient to wait, and it did wait until November, 1918. The 5-year period of time had not then elapsed since the institution of the action. It then delayed securing the change of venue, which apparently was made ex parte without notice to the plaintiff, from November, 1918, until February 2, 1919, when the transfer was made to Pierce county. The defendant was securing the transfer, and it was his duty to see that it was made and the necessary prerequisite fees paid to the clerk to whom the case was transferred. §§ 3499—3548, C. L. 1913. Under all the circumstances we are not inclined to disturb the findings of the trial court that there was not an unreasonable neglect or a prima facie neglect on the part of the plaintiff