State v. Bloom
| Decision Date | 22 November 1922 |
| Citation | 49 N.D. 224,190 N.W. 812 |
| Parties | STATE v. BLOOM et al. |
| Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Where defendants have made an application to the court direct for a change of venue, based upon their residence in other counties, and have secured an ex parte order for the transfer of the cause to a county of defendants' residence, and where notice thereof was served upon the plaintiff, all within the time prescribed by section 7418, C. L. 1913, and where thereafter, plaintiff, upon a motion to vacate such order, makes no showing of merits that the defendants are not entitled, as a matter of right, to such change, or that the order would or should have been otherwise, if made after notice and hearing, it is held, that the order of the trial court should not be reversed for the reason that it requires the performance of idle acts.
Appeal from District Court, Cass County; Cole, Judge.
Action by the State against John H. Bloom and others. From an order refusing to vacate an order granting a change of venue, the State appeals. Affirmed.Sveinbjorn Johnson, Atty. Gen., and George F. Shafer, Asst. Atty. Gen., for the State.
William Lemke, of Fargo, for respondents.
Statement.
The state appeals from an order refusing to vacate an order granting a change of venue. On June 20, 1922, the state commenced this action to set aside and cancel a purchase and deed of 1,360 acres of land in Kidder county, upon grounds of fraud and conspiracy and to recover from defendants $13,600, the purchase price thereof. On July 17, 1922, defendants made an application to the district court in the county where the action was instituted, to change the place of trial from Cass county to Kidder county. The grounds of the application were that none of the defendants were residents of Cass county; that two of them had resided in Kidder county for over five years last past; that the land involved is situated in Kidder county; that nearly all of the necessary witnesses reside in Kidder county. Accompanying the application was an affidavit that the defendant Bloom, for over 10 years last past was a resident of Ramsey county; that the other defendants for more than five years last past have been, and are, residents of Kidder county. On the same date the trial judge ordered that the place of trial be changed from Cass county to Kidder county, the defendant Bloom being a resident of Ramsey county and the other defendants residents of Kidder county. The court ordered a copy of the application, affidavit, and order to be mailed to the Attorney General of the state.
On August 8, 1922, the state served notice of motion to vacate such order of transfer. The grounds of the motion and affidavit were that no demand had ever been made or served upon the plaintiff and that no notice of the application had been served upon the plaintiff, prior to the obtaining and making of the order dated July 17, 1922; that the state had no opportunity to be heard or to appear in resistance thereto. On July 24, 1922, the clerk of the district court in Cass county transferred the papers in the cause to Kidder county. On August 28, 1922, the district court in Cass county denied plaintiff's motion to vacate. The state has appealed from the order of the court so denying its motion to vacate. By stipulation all the papers in the cause, both from Kidder county and Cass county, have been settled and certified to this court. The state contends that the ex parte order of July 17, 1922, was invalid, for the reasons that defendants had never made any demand in writing for a change of venue in accordance with section 7418, C. L. 1913, and that it was made without notice to, or any opportunity of, the state to appear and contest the application.
Section 7417, C. L. 1913, provides, among other things, that this action shall be tried in the county in which the defendants, or some of the defendants, reside at the time of its commencement.
Section 7418, C. L. 1913, provides as follows:
“ Defendant Must Ask Change.-If the county designated for that purpose in the complaint is not the proper county, the action may,...
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State v. Osen
...of place of trial under this section is mandatory when the defendant has brought himself within the terms of the statute. State v. Bloom, 49 N.D. 224, 190 N.W. 812; Clark v. Cleveland, 60 N.D. 460, 235 N.W. Huber v. Wanner, 62 N.D. 303, 243 N.W. 661; Ott v. Kelley, 64 N.D. 361, 252 N.W. 269......
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State v. Osen
...place of trial under this section is mandatory when the defendant has brought himself within the terms of the statute. State v. Bloom et al., 49 N.D. 224, 190 N.W. 812;Clark et al. v. Cleveland et al., 60 N.D. 460, 235 N.W. 342;Huber v. Wanner et al., 62 N.D. 303, 243 N.W. 661;Ott v. Kelley......
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...second part of Irwin had been the basis of its decision, it could have omitted this alternative ground. Finally, in State v. Bloom, 49 N.D. 224, 227, 190 N.W. 812, 813 (1922), this court cited Price v. Willson, supra, for the proposition that "The court, in certain cases, might even excuse ......
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