consented, so that any benefit he would have received if the money had been applied on the note, instead of otherwise, viz: on an account, is secured to him and a new trial is therefore unnecessary. For reasons stated in the opinion, nothing would be gained by a new trial. Edgeley Co-op. Grain Co. v. Spitzer, 406.
16. Thereafter, plaintiff made a motion for a new trial which was denied and an order to that effect entered, and in this it is held there was no error. Kasbo Const. Co. v. Minto School Dist., 423.
17. A direct action to vacate such void judgment, (when entertained by the trial court without objection), instead of a motion or other proceeding therefor, may be upheld. Citizens State Bank v. Smeland, 468.
18. That the findings of the trial court determining that the dwelling did not become unoccupied for a period of ten days are presumed correct and will not be reversed if there be evidence substantially supporting. Palmeter v. Williamsburgh City Fire Ins. Co., 530.
19. For reasons stated in the opinion the case is remanded for a determination of the amount due to the defendant, Hodge, from the plaintiff. Hassen v. Salem, et al, 592.
20. An application for a change of venue on the ground that an impartial trial cannot be had in the county where the action is pending is addressed to the sound, judicial discretion of the trial court, and the ruling made by the trial court will not be disturbed unless an abuse of discretion appears. In this it is held that the trial court did not abuse its discretion in denying a motion for a change of venue. Langer v. Courier News, 678.
21. Certain motions by plaintiff for dismissal of the appeal considered and for reasons stated in the opinion are denied. Kennelly v. N. P. Ry. Co., 685.
22. In an action to foreclose a chattel mortgage which covered, among other property, crops to be later grown on land occupied by the mortgagors, where the mortgagors were not personally served and where the complaint showed that the owner of the land, who was made a party defendant, claimed an interest in the crop, the latter answered, setting up a lease made with one of the mortgagors subsequent to the date of the mortgage and with the knowledge of the mortgagee. The lease reserved to the lessor title to the crop as security for the stipulated cash rental and advances. The answer further denied that a legal seizure had been made under the warrant issued in the action, alleged a conversion by the plaintiffs and damages incident hereto, but concluded with a prayer for relief that defendant be decreed to be an owner and entitled to possession. The mortgagor abandoned the premises before the crops were harvested and the defendant, with the plaintiff’s acquiesence, caused
