George v. Kotan

Citations

• 18 S.D. 437
• 101 N.W. 31
• 1904 S.D. LEXIS 76

Syllabus

<p>1. Where plaintiff accepted service of an affidavit in support of a motion for change of venue, and allowed the same to he read without objection, he waived his right to object that the affidavit was not served with the notice of motion.</p> <p>2.- Laws 1901, p. 128, c. 103, § 1, provides that an action on a note against persons any one of whom resides in the state and was a party to the note when first delivered shall be tried in the judicial subdivision in which some defendant who was a party to the note when first delivered resides or may be served at the commencement of the action. Section 3 (page 129) declares an emergency on the ground that there was no statute to protect makers of notes from being sued in any county in which a person resides whom the holder of the note can induce to sign his name on the back thereof. Held, that where, in an action on a note, an unchallenged affidavit was filed by the maker in support of a motion to change the place of trial, alleging that plaintiff had no interest in the suit, but was made a party eollusively by the real owner, who indorsed the note for the purpose of laying the venue of the action in a county other than that where the maker resided, defendant was entitled to a change of place of trial as a matter of right.</p>