By the Court,
WhitmaN, J.:On the ninth of September, 1870, respondents filed their complaint against appellant in the First District Court, Storey County. On the thirteenth of the same month, he was duly served in the action in the County of White Pine, in the Eighth Judicial District. On the twenty-second day of the month aforesaid, appellant, by his attorneys, made demand that the place of trial of the cause be changed to White Pine County, his residence, and notified respondents that he would on the twenty-eighth of the said month move therefor in open Court, upon his affidavit of the fact accompanying the notice.
Thereafter, respondents filed and served notice that they would resist the motion, and also themselves move to retain the cause for trial in Storey County, on the ground of the convenience of witnesses. This notice was also accompanied by affidavits ; they were answered by appellant; respondents thereto replied, and appellant asking further time to file additional affidavits, was refused.
Upon hearing, the Court made the following order. * * * “ The Court now orders that said motion be, and the same is hereby overruled and denied.” On the thirtieth of November following, the default of appellant was entered, and on the same day judgment was rendered for the amount claimed in the complaint. From this judgment the present appeal is taken, various specifications of error being assigned. These will not be particularly examined, as they are mostly pointed to matters which were in the discretion of the Court, provided it was properly exercising jurisdiction in the case.
With respect to cases of the nature of the present, the code of practice in this State, provides, that * * * “ The action shall be tried in the county in which the defendants, or any one of them, may reside at the commencement of the action. * * * If the county designated for that purpose in the complaint be not the proper county, the action may notwithstanding be tried therein, *144unless the defendant before the time for answering expire demand in writing that the trial be had in the proper county, and the place of trial bo thereupon changed by consent of parties, or by order of the Court, as is provided in this section. The Court may, on motion, change ,the place of trial in the following cases: First. When the county designated in the complaint is not.the proper county.” * * * * It is also further provided, thus: Third. “ When the convenience of witnesses and the ends of justice would be promoted by the change.” * * * (Statutes of 1869, 199, Secs. 20, 21.)
As a general rule, change of place of trial is eminently within the discretion of the Court to which the motion is addressed ; but when the motion is made under the peculiar language of the statute cited, on the ground of residence, there is no room for the exercise of discretion. The statute is peremptory in that regard, and'the party making such motion is entitled to have the same granted, that he may plead or take such other action as he may be advised ; and to that end, it is his privilege to have the ruling and decision of the judge of the place of his residence,' upon any question arising subsequently to the necessary order, upon his demand and motion.
Why the Legislature should have made this special provision is perhaps not so clear; and upon a somewhat similar statute, and in a case resembling the present, it was said in New York that it would seem to be an idle ceremony to change the place of trial of a case which would probably have to be immediately returned; but of that neither this Court nor the District or other Court, where the original motion is made, can judge. When, as in the present action, it is clear that the mover comes within the language of the statute, he is entitled to his order for change, and any subsequent proceeding should be had in the Court to which the cause is transferred.
To the motion and affidavit of appellant, the counter motion (if counter motion it be) and affidavits were no defense. They raised an irrelevant issue, and one which the First District Court had no right to consider. The appellant had no need to answer such affidavits, but having done so, he should not be made to suffer for an *145act of mere surplusage; one which he evidently — and so the District Court, judging from its order in the premises — thought a proper part of his original motion.
There can properly be no such practice as an affirmative motion to retain a cause in a certain county for trial; this is matter of defense, and though from some portion of the language of respondents’ notice, it would follow that they proposed making an affirmative motion, yet to call it so could not change its real nature ; and so the District Court in its order only rules upon the motion of appellant, treating all the affidavits as pertaining to that. Thus much has been said-, because it is claimed that appellant, by filing affidavits and making contest upon the question of the convenience of witnesses, thereby waived his right to object to the decision of the District Court thereon, and consequently is bound thereby. The legal presumption of a waiver of any right by a litigant will not be drawn except in a clear case; and especially so when to follow such a presumption would be to deprive a party of his day in Court.
Here the appellant is found all the time insisting on his original demand, and though doing more than he needed, by filing affidavits as to the convenience of witnesses, yet this was clearly upon the hypothesis that such action was of some avail as to the primary question. To hold that he at any time waived his first demand, would be to force an illegitimate inference from the circumstances.
"When appellant’s original motion was made, the District Court of the First District was by force thereof ousted of all jurisdiction over the person of appellant and the subject matter of the suit, except to decide upon the one proposition of the residence of appellant at the time of the commencement of the action. That found in favor of appellant, the order for change of place of trial necessarily and conclusively followed.
- In considering the question of the convenience of witnesses, the. District Court allowed an irrelevant issue to usurp the place of the legal and proper one. In deciding the motion of appellant upon any other consideration than that by him originally presented, the Court érred.
The default and judgment which followed the ruling on appel *146lant’s motion were taken without authority and beyond the jurisdiction of the Court, and must consequently be set aside.
It is so ordered, and the cause is remanded, with directions to the First District Court to vacate all orders therein, and to make an order changing the place of trial of the case to White Pine County.