State v. Brace , 78 N.D. 428 ( 1951 )

Burke, J.

This action was brought by the State of North Dakota to. condemn certain property of the defendant located in Steele County, for use as a wild water fowl refuge. The defendant demurred to plaintiff’s complaint. Before a decision upon the issues raised by the demurrer was reached, defendant moved the trial court for a change of the place of trial of'the action upon the ground that • defendant could not have a fair and impartial. trial of the action in Steele County. This motion was granted. Plaintiff has appealed from the order granting the motion.

One of the grounds upon which plaintiff bases his appeal is that the order for change of the place of trial, having been entered before issues of fact were joined in the case, was made prematurely. On this ground plaintiff must be sustained. While under the provisions of Section 28-0406 NDRC 1943 a motion for a change of the place of trial upon the ground that the venue is laid in the wrong county must be made before answer, a motion for a change of place of trial for the convenience of witnesses or because an impartial trial cannot be had in the county is premature where issues have not been joined by filing an answer. McConnon & Co. v. Sletten, 55 ND 388, 213 NW 483; 56 Am Jur 63; 67 CJ 139. The order of the trial court is therefore reversed.

Morris, C.J., and Crimson and Christianson, JJ., concur. Sathre, J., disqualified,-did not participate.