had fairly and impartially. No objection has been urged to a designation of Pierce county. The county seat, Rugby, is nearer to Minot than Ramsey county. A special term may be speedily and conveniently arranged for the disposition of this matter by the judges of the second judicial district. It is therefore ordered that a minute order be entered as follows:
It is ordered that the order made by the district court of Ward county transferring said action for trial to Ramsey county be set aside, and that the district court of said Ward county be, and it is directed to enter an order transferring said action for trial to the district court of Pierce county; and Judge Kneeshaw, the presiding judge of said second judicial district, in which Pierce county is located, be and he is directed to designate one of the three judges in said district to preside upon the trial of said action. It is further ordered that a special term of the district court of Pierce county be called at the earliest possible moment, the exact date to be fixed by the judges of said district in accordance with the rules of practise and statutes in said case made and provided.
Robinson, Ch. J., and Bronson and Grace, JJ., concur.
Birdzell, J. (dissenting). In my opinion the application shows no abuse of discretion whatever in removing the cause to Ramsey county for trial. On the contrary, on the showing made before the district court, it appears prima facie to have been a very proper exercise of discretion. Upon the argument in this court, facts were presented by affidavit which were not before the district judge at all, as they occurred subsequent to the original application. It also appeared upon oral argument in this court that one objection the defendant had to the order entered in the district court was that he might be forced to trial in Ramsey county before he had had an adequate opportunity to prepare. In other words, he desired some delay. If sufficient cause for continuance existed, it could, of course, be presented to the court sitting in Ramsey county. However, since the defendant himself desired some delay, the exigency, in my opinion, is clearly not such as to justify this court in an original exercise of discretion in regard to the changing of the place of trial based upon facts which were not before the district judge. This is legislation, nothing more nor less. It is not an exercise of the power of superintending control. It is an original exercise of discretion. The statute requires the application to be made before the district judge, and, in my opinion, this court is not justifed in ignoring this statute and ordering a change in the place of trial upon facts which were never presented to the district judge.
