for change of venue, together with the order of the court, were filed with the clerk in Pierce county. The answer was not filed with the clerk in Pierce county until July 2, 1919, and apparently not at all with the clerk in Ward county. On May 24, 1919, the defendant prepared motion papers for dismissal of the action for failure to prosecute, pursuant to the provisions of § 7598, C. L. 1913. By stipulation of the parties, the hearing of this motion was continued from June 2, 1919, until June 30, 1919. On July 2, 1919, Hon. A. G. Burr, district judge, denied the motion. In an extensive memorandum opinion, he stated that neglect on the part of the plaintiff must appear; that it could not be considered neglect on plaintiff’s part not to urge the case for trial between the time when defendant first left with the clerk motion papers for change of venue and the time when the application therefor was granted; that the defendant took change of venue before the expiration of the 5-year period, and did not pay his filing fee and get the case on the Pierce county calendar until after the expiration of the five years ; that after December, 1918, the delay occasioned was so occasioned by the defendant. In January, 1921, the action came to trial before Hon. C. W. Buttz, trial judge. The defendant again presented the motion for dismissal of the action for failure to prosecute, and again the motion was denied.
At the trial the plaintiff gave testimony to the following effect: He owned one-half section of land about five miles from defendant’s elevator at Sawyer. In 1909 the farm was operated under a cropper’s contract with one Myatt. This contract reserved title in all crops in the plaintiff until division to secure and repay advances of the plaintiff and an indebtedness owing by Myatt to the plaintiff, stated in the contract to be $2,500 and interest. Between September 26 and 30, 1909, the wheat was threshed. At that time Myatt owed the plaintiff over $2,700. Prior to the time of threshing, the plaintiff notified the agent of the defendant concerning his claims to the grain. At the time of threshing, the wheat was hauled direct from the machine, with the exception of two loads. The plaintiff kept track of the wagons as they left the machine, and was driving back and forth from the farm to the elevator. He testified that 1,546 bushels went to the defendant’s elevator. Plaintiff had made a memorandum of the wheat delivered, which he secured from examining plaintiff’s books. That at that time the agent told him he had paid Myatt for the same number of bushels for which plaintiff
