Hinsey v. Alcox
| Decision Date | 23 August 1917 |
| Citation | 164 N.W. 296,38 N.D. 52 |
| Parties | HINSEY v. ALCOX et al. |
| Court | North Dakota Supreme Court |
In an action on an attachment bond, the proper place of trial is the county in which the defendant, or some of the defendants, reside at the time of the commencement of the action. Under section 7417, Compiled Laws of 1913, the rights of the defendants in this case to have the trial in the county in which they, or some of them, reside, is an absolute right.
Where a party to an action is under the law entitled to a change of venue in civil actions, a demand for such change of venue, served before the expiration of the time to answer, preserves his right to a change of venue; if the demand for change of place of trial is not consented or agreed to by the party upon whom such demand is served, an application to the court may be made for an order, and an order may be made changing such place of trial in pursuance of such application after the time for answering has expired.
Appeal from District Court, Burleigh County; W. L. Nuessle, Judge.
Action by Fred W. Hinsey against H. C. Alcox, and others. From a judgment for defendants, plaintiff appeals. Affirmed.W. L. Smith, of Bismarck, for appellant. McEnroe & Wood, of Fargo, for respondents Engebretson and McGibbon.
The question here presented involves the place of trial of a civil action; a demand for a change of venue for the trial of such action having been made and served prior to the time fixed by law for the defendant to answer the complaint of the plaintiff, to wit, 30 days, had expired.
The complaint alleges a cause of action against H. C. Alcox, as principal, and Edwin A. Engebretson and John R. McGibbon, as sureties, who were principal and sureties on an attachment bond. At the time of bringing the action in which the warrant of attachment was issued and the attachment bond was given, the plaintiff was the owner of lot 1, block 14, of the village of Moffit, in Burleigh county, N. D., upon which property the plaintiff had for several years engaged in general hardware, farm implement, and merchandise business, the stock of which was alleged to be worth $1,400. It was alleged that the sheriff, in serving said warrant of attachment in such suit, entered upon plaintiff's property, fastened the doors and windows of the building, closing the same, damaged the said real estate, and seized and levied upon plaintiff's stock of merchandise, hardware and farm implements. This action is brought on the attachment bond to recover for the damages to such real estate. All of the defendants reside and have their domicile in the city of Fargo, county of Cass, N. D. Plaintiff resides and has his family in Burleigh county, N. D.
Before the time of answering expired, the defendants' attorney made and served upon the attorneys for plaintiff, after the complaint had been served upon them, and prior to the time for answering had expired (that is, the 30-day period allowed by law for the defendant to answer the complaint of the plaintiff), a demand in writing for the change of the place of trial of such action from Burleigh county to Cass county, under section 7417, Compiled Laws of 1913, which is as follows:
“In all other cases, subject to the power of the court to change the place of trial as provided by statute, the action shall be tried in the county in which the defendant or some of the defendants reside at the time of the commencement of the action: Provided, if such county is attached to another county for judicial purposes, the action shall be tried in the latter county; and if none of the defendants shall reside in the state, the action may be commenced in any county which the plaintiff shall designate in the summons.”
In connection with this case it is also necessary to refer to section 7418, which is as follows:
“If the county designated for that purpose in the complaint is not the proper county, the action may, notwithstanding, be tried therein, unless the defendants before the time for answering expires demand in writing that the trial be...
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Ott v. Kelley
... ... Section 7415, ... Comp. Laws Supp. 1925, and § 7418 Comp. Laws Supp. 1913 ... The plaintiff could not prevent it. See Hinsey v ... Alcox, 38 N.D. 52, 164 N.W. 296; Fargo Silo Co. v ... Pioneer Stock Co. 42 N.D. 48, 171 N.W. 849; Thorson ... v. Weimer, 59 N.D. 457, 230 ... ...
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First National Bank of Dickinson, North Dakota, a Corp. v. Rohlik
...refused to agree to such change the trial court may grant an application for a change after the time for answer expired." Hinsey v. Alcox, 38 N.D. 52, 164 N.W. 296; v. Cleveland, 60 N.D. 460, 235 N.W. 342. Such right is preserved to the defendant by the making of the demand. Burg v. Farmers......
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First Nat. Bank of Dickinson v. Rohlik
...to agree to such change, the trial court may grant an application for a change after the time for answer expired. Hinsey v. Alcox et al., 38 N. D. 52, 164 N. W. 296;Clark et al. v. Cleveland et al., 60 N. D. 460, 235 N. W. 342. Such right is preserved to the defendant by the making of the d......
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Ott v. Kelley
...right. Section 7415, Comp. Laws Supp. 1925, and section 7418, Comp. Laws 1913. The plaintiff could not prevent it. See Hinsey v. Alcox et al., 38 N. D. 52, 164 N. W. 296;Fargo Silo Co. v. Pioneer Stock Co. et al., 42 N. D. 48, 171 N. W. 849;Thorson v. Weimer, 59 N. D. 457, 230 N. W. 596;Cla......