Fargo Silo Co. v. Pioneer Stock Co.
| Decision Date | 25 March 1919 |
| Citation | 171 N.W. 849,42 N.D. 48 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Cass County, A. T. Cole, J.
Reversed and remanded.
Reversed and remanded. Appellant entitled to statutory costs.
George H. Stillman, for appellants.
"Service of demand and answer were complete upon the dropping of the envelop containing them in the United States Postoffice within the statutory time." Clyde v. Johnston, 4 N.D. 92, 58 N.W. 512; Cedar Rapids N. Bank v Coffey, 25 N.D. 459, 141 N.W. 997; Comp. Laws 1913 § 7887; Nind v. Myers, 15 N.D. 400, 109 N.W. 335.
Judgment entered before time for answer expired is erroneous and void. Hogg v. Christensen, 29 N.D. 8, 149 N.W. 562.
"The right to demand change of place of trial is an absolute right." Comp. Laws 1913, § 7418; Smail v Gilruth, 8 S.D. 287, 66 N.W. 452, Dak. Rev. Codes 1877, § 95.
A general denial presents a valid, legal, substantial defense, and cannot be struck as sham or frivolous. Kline v. Harris, 30 N.D. 424, 152 N.W. 688.
Pierce, Tenneson, & Cupler, for respondent.
"Service by mail is not personal service." Comp. Laws 1913, § 7951; 31 N.D. 375.
"Service by mail may be made only when statute provides for it." Comp. Laws 1913, §§ 7952, 7953; People v. Alameda Turnp. Co. 30 Cal. 182, and cases cited on page 185 from New York; Clark v. Adams, 33 Mich. 164; Moore v. Besse, 35 Cal. 186; People v. Alameda Turnp. Road Co. 30 Cal. 186.
"Where a question of fact is decided on a motion, the decision of the trial court will not be disturbed on appeal, unless clearly opposed to the weight of the evidence." Totten v. Sale, 72 Ala. 488; Haley v. McCarty (Neb.) 67 N.W. 857; Bowker v. Goodwin, 7 Nev. 135.
"Findings of fact by the court on conflicting affidavits will be sustained on appeal." Barrett v. Graham, 19 Cal. 632; Flannigan v. Duncan (Minn.) 49 N.W. 981; Tyler v. Hildreth, 77 Hun, 580; Reigner v. Spang, 5 A.D. 237, 39 N.Y.S. 127; Johnson v. Steele (Neb.) 36 N.W. 358; Wheeler v. Catlin, 44 Wis. 464; 23 Cyc. 958 and cases cited; Wheeler v. Castor, 11 N.D. 347.
"While a general denial will suffice as an answer, if made within the required time, an answer making a prima facie showing of a good defense is essential to the opening of a default." Doulan v. Thompson Falls Copper Co. (Mont.) 112 P. 445; Mougey v. Miller (N.D.) 169 N.W. 735; Racine v. Pavlecik, 21 N.D. 222, and cases cited.
This action is one to recover upon a promissory note for $ 193.50. The action was instituted in the district court of Cass county on November 12, 1917, by the service of the summons upon each of the defendants. The defendant Pioneer Stock Company was domiciled at Courtenay, Stutsman county. The defendant Tucker had been a resident of Foster county for thirty-three years. The note in question was signed "Pioneer Stock Company by H. N. Tucker, President." The complaint was in the ordinary form. The defendants being domiciled or residing in Stutsman county, it was the proper county in which to try the case. The county of Cass designated in the complaint was not the proper county, though the action could be tried therein unless the defendant, before the time of answering expired, demanded in writing that the trial be had in the proper county and the place of trial be changed either by the consent of the parties or by order of the court, as and for the reasons, or some of them, as provided in § 7418, Compiled Laws 1913. H. N. Tucker made affidavit dated December 12, 1917, in which he set forth that the Pioneer Stock Company is domiciled at Courtenay, Stutsman county, North Dakota, and that it had never been domiciled in any other place, and that the affiant Edwards had been a bona fide resident of Stutsman county for thirty-three years, and had never been a resident of Cass county. The affidavit further showed that the action was brought in the wrong county and demanded a change of venue of the action from Cass county to Stutsman county. If the defendants in time made a proper demand for a change of venue, then the district court of Cass county had no jurisdiction to enter the judgment in this case. Herein lies the principal contention. Summons having been served on the 12th day of November, 1917, the defendants had until the expiration of the 12th day of December within which to demand change of venue; for their right to answer did not expire until that time. George H. Stillman made affidavit in which he positively stated under oath that on the 12th day of December, 1917, in the village of Courtenay, Stutsman county, North Dakota, he prepared an answer to the complaint in said action, and also prepared a demand for change of venue from the district court of Cass county to the district court of Stutsman county, and also prepared a stipulation for a change of venue of the action pursuant to the demand; that on the 12th day of December, 1917, at 8:30 o'clock P. M., he deposited a full, true, and complete copy of the answer, and the original and copy of the demand for a change of venue and the original and copy of the stipulation for a change of venue in a securely sealed envelop with postage fully prepaid, in a United States postoffice in the village of Courtenay, Stutsman county, North Dakota, addressed to Pierce, Tenneson, & Cupler, of Fargo, who were the attorneys for plaintiff; that there is a regular communication by mail between the village of Courtenay and the city of Fargo.
Section 7952, Compiled Laws 1913, is as follows: "Service by mail may be made when the person making the service and the person on whom it is to be made reside in different places, between which there is a regular communication by mail."
The attorneys for the plaintiff reside in Fargo; attorney for defendant, Mr. Stillman, resides at Carrington. Stillman in his affidavit did not show that he resided at...
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