action is commenced in the wrong county, and the party is entitled to a change as a matter of right.

If the cause is tried in the court in which the action is brought, after an application for a change of venue has been made, it will be presumed, on appeal, there being no showing to the contrary, that subsequent conditions, necessary to divest the court of jurisdiction, were not performed.1

A party may be relieved from the effect of a failure. to perform conditions of this character upon a proper showing. But an offer to perform the condition, after the time fixed by law or the order of the court, where the same may be fixed by the court, without sufficient excuse for not having done so at the proper time, is of no avail.3

The court can not impose upon the applicant conditions not required by the statute to be performed.*

49. WAIVER AS TO VENUE.-As a rule the right to the trial of a case in a particular place is held to be a personal privilege that may be waived. This is undoubtedly so in transitory actions or those in which jurisdiction of the person alone is involved. And in some cases, the same rule has been applied in what were, at common law, local actions, or those in which the location of the subjectmatter of the action fixed and determined the jurisdiction, where the party is limited by statute, in his right to question the jurisdiction, to an application for a change of venue.6 But, as we have seen elsewhere, the rule on the subject is not uniform.7

In all cases in which the remedy of the party for the commencement of an action in the wrong place is con

1 Duncan . Tufts, 52 Ark. 404; 12 S. W. Rep. 873.

2 Cook v. McDonnell, 70 Wis. 329; 35 N. W. Rep. 556.

3 Estep v. Armstrong, 69 Cal. 536; 11 Pac. Rep. 132.

* Ante, sec. 47; Bantley v. Stowell, 52 N. W. Rep. 92; South Pueblo,

etc., Co. v. Moore, 10 Colo. 254; 15 Pac. Rep. 333.

5 Ante, secs. 13, 15, 43.

6 Ante, sec. 45; Walker v. Stroud, 6 S. W. Rep. 202.

7 Ante, sec. 45.

fined to an application to change the venue, a failure to make such application within the time fixed by law, or rule of court, in the absence of some legal excuse therefor, is a waiver of the objection, and vests the court in which the action is brought with full jurisdiction to proceed to a final determination of the cause.1

The same rule as to waiver applies where the question. is one not affecting the jurisdiction of the court, as in case of local prejudice and like causes for a change of venue. But the entrance of a full appearance to the action does not usually amount to a waiver as would be the case if the question were one of jurisdiction of the person purely.

Statutes usually require the application for a change of venue to be made at the time of, or within a certain time after the answer is filed. But in many cases the cause for the change may not be discovered until the time within. which the application is required to be made has expired. In such cases, upon a proper showing of the reasons for not having made the motion at an earlier day, the change will be allowed.1

Where the demand for a change of the place of trial is required to be filed with the answer it is held that it may be filed with an amended answer. But an objection to the venue is waived by filing an answer to the merits al

1

Ante, secs. 45, 47; Powell v. Sutro, 80 Cal. 559; 22 Pac. Rep. 308; Duffy v. Hickey, 68 Wis. 380; 32 N. W. Rep. 54.

In the case of Powell . Sutro, supra, it was held that under a statute requiring the application to be made at the time the defendant appears and answers, or demurs, an application could not be made in the superior court where an answer had been filed in the justice's court, which had the effect to oust that court of all jurisdiction in the action and transfer jurisdiction to the superior court. But the decision was rendered by a bare majority of the court and is not in harmony with the well-settled rule that where a party is prevented, without his fault, from making the application within the time limited he may make it at the earliest opportunity thereafter. Ante, secs. 45, 47.

2 Ringgenburg v. Hartman, 102 Ind. 537; 26 N. E. Rep. 91.

3 Powell . Sutro, 80 Cal. 559; 22 Pac. Rep. 308.

Ante, sec. 47; Shoemaker v. Smith, 74 Ind. 71.

5 Penniman v. Fuller & Warren Co., 133 N. Y. 442; 31 N. E. Rep. 318.

though the answer is filed before the expiration of the time allowed the defendant to file the same.'

Where an application for a change has been made and denied where the complaint stated no cause of action, it is held that the application may be renewed if a sufficient complaint is subsequently filed and that the order denying the change is not an adjudication which will estop the defendant from making the second application.2

In some of the states it is provided that the objection that the action was commenced in the wrong county, or district, may be made at the trial, and that upon proof of the fact the same must be dismissed. Under such a statute the failure to make the objection at an earlier date is not a waiver of the right.3

The party who demands a change of the place of trial must insist upon a ruling by the court. If the motion does not appear to have been ruled upon, and the action is proceeded with, the party filing his answer, he will be held, on appeal, to have waived his objection to the jurisdiction.*

Where the party procuring the order of removal is required to cause the papers in the case to be transmitted within a certain time a failure to comply with the requirement is, under the statutes of some of the states, a waiver of the right to a change.

Defects in the application for a change of venue may be waived by a failure to make them at the proper time. When the application or affidavit is defective, merely, it is too late to make the objection in the court to which the action has been removed. And a consent to a change to a court having jurisdiction of the subject-matter of the action is a waiver of the necessary application therefor."

1 Granville Co. Board of Ed. e. State Board, 106 N. Car. 81; 10 S. E. Rep. 1002.

2 Veeder . Baker, 83 N. Y. 163.

3 Baer v. Kempner, 3 N. Y. Sup. 529.

* Knott v. Dubuque, etc., S. C. R. Co., 51 N. W. Rep. 57.

3 Cook v. M'Donnell, 70 Wis. 329; 35 N. W. Rep. 556.

6 Squires v. Chillicothe, 89 Mo. 226; 1 S. W. Rep. 23.

7 Township . County of Marion, 110 Ind. 579; 10 N. E. Rep. 291.

So where consent is given to the hearing of the application on proof other than that required by law. And where the court to which the cause is removed has jurisdiction of the subject-matter of the action an appearance in the action, in such court, is a waiver of any objection to the jurisdiction over the person and of any defects in the proceedings to procure the change.2

50. COUNTER MOTION TO RETAIN CASE.-In most of the states a change of the place of trial from one county to another may be had for the convenience of witnesses.3 But the fact that the convenience of witnesses will be subserved by the trial of the case in a county other than the one in which the action should be brought is no reason. or justification for bringing the action in such county. Therefore, if the action is brought in such county, and a motion is made to change the place of trial on the ground that the case was commenced in the wrong county, it is no defense to such an application that it will be to the convenience of the witnesses to try the cause in the county in which it was commenced, nor will a counter motion to have the court retain jurisdiction, on that ground, be entertained. The cause must first be removed to the court having jurisdiction, leaving the party who has commenced it in the wrong county to make his application in that court for a change of the place of trial.1

The right of the defendant to a change of venue in such case is absolute, and can not be defeated by a counter motion to retain the cause. But if a change of the place of trial is asked for, on grounds which address themselves. to the discretion of the court, there is no reason why the court should not consider other causes which would tend

1

1 Kelly v. Alcona Circuit Judge, 79 Mich. 392; 44 N. W. Rep. 925. 2 Aurora F. Ins. Co. v. Johnson, 46 Ind. 315, 321. Ante, sec. 46.

* Veeder v. Baker, 83 N. Y. 163; Park v. Carnley, 7 How. Prac. 355; Moore v. Gardner, 5 How. Prac. 243; Van Kleck v. Hanchett, 51 Wis. 398; 8 N. W. Rep. 236. But see on this point Mason v. Brown, 6 How. Prac. 481; Couillard v. Johnson, 24 Wis. 533. A contrary rule is maintained in some of the states. Edwards v. S. P. R. R. Co., 48 Cal. 460; Hanchett v. Finch, 47 Cal. 192; Hall v. C. P. R. R. Co., 49 Cal. 454.

to establish the justice of a demand that the action be retained. and tried in the county in which it is pending.1

The question must necessarily turn upon the language of the statute authorizing the change. If the right is absolute, and without qualification, the demand for the change must be complied with and no counter motion to retain the case on other grounds can be entertained. But if the granting of the change is within the discretion of the court and the propriety of such change may properly be inquired into, the court may consider other reasons tending to show the propriety of retaining the case.3

But usually, where the motion for removal is on other grounds than that the action was commenced in the wrong county, no counter motion is necessary. Every thing which would tend to defeat the motion may be shown in defense and without a counter motion.*

In some of the cases the right to resist an application for removal of a cause, commenced in the wrong county, on the ground of convenience of witnesses, has been denied where the issues were not made up, on the ground that the question of the convenience of witnesses can not be passed upon until the issues are formed and the necessity for witnesses can be determined. And the court can not delay action on the application for the change until the issues are made up, in order to give an opportunity to interpose a counter motion to retain the action on account of the convenience of witnesses."

51. ORDER FOR CHANGE AND ITS EFFECTS.-There is some discrepancy in the decided cases as to what it is in the proceedings relating to changes of venue that divests the

1 See Mason v. Brown, 6 How. Prac. 481; Park v. Carnley, 7 How. Prac. 355; Couillard v. Johnson, 24 Wis. 533, 537.

2 Van Kleck v. Hanchett, 51 Wis. 398; 8 N. W. Rep. 236; Kleiners ". Loeb, 25 N. W. Rep. 216; Meiners v. Loeb, 64 Wis. 343.

3 Couillard v. Johnson, 24 Wis. 533; Van Kleck v. Hanchett, 51 Wis. 398; 8 N. W. Rep. 236.

Cook v. Pendergast, 61 Cal. 72.

5 Bonnell v. Esterly, 30 Wis. 549; Cook v. Pendergast, 61 Cal. 72. Heald v. Hendy, 65 Cal. 321.