Appeal from the District Court of Hettinger county, North Dakota.
This was an action brought before a justice court before one Barth, justice of the peace of Mott, North Dakota, for $13.50 for alleged balance due on a labor account. Summons was returnable August 26, 1916, at 10 o’clock a. m. On August 25, 1916, the defendant’s attorney filed an affidavit and motion for change of venue with said justice of the peace, which affidavit was' signed by the defendant’s attorney, Otto Thress. The motion for change of venue was granted, and the action was, by the justice, transferred or attempted to be transferred to Justice McCain, who notified both parties of the time and place of hearing before him, which was August 26, 1916, at 10 o’clock p. M.
On August 26, 1916, at 10 o’clock a. m. plaintiff made application to justice of the peace, Barth, to have the order granting the change of venue reversed, which was done on the motion of the plaintiff.
On August 26, 1916, at 10 o’clock a. m., defendant was requested *558by plaintiff’s attorney to go to the rooms of Barth, the justice of the-peace. The defendant claims he remonstrated, but he did go, and. the case was tried so far as the plaintiff was concerned. Defendant was called as a witness for plaintiff and cross-examined by the plaintiff. The defendant was not represented by an attorney, and did nothing-further in the case than testify when called by the plaintiff. Justice-McCain had returned the papers to Barth at the request of J. K. Murray, the attorney for plaintiff.
One of the main questions presented is: Did Justice of the Peace Barth lose jurisdiction of the case by the granting of the motion for a change of venue? The decision of this question is decisive of the appeal. It will be remembered that the affidavit for the change of venue was made by Otto Thress, the attorney for the defendant, and not by the defendant. The section of our statute relating to this subject is § 9036 of the Compiled Laws of 1913. That section requires the affidavit in application for a motion for a change of venue from a justice of the peace to -be signed by the party applying for the change of venue, which affidavit shall be to the effect that the party who makes and files the affidavit believes he cannot have a fair and impartial trial before such justice by reason of the interest, prejudice, or bias of the justice. It is under this subdivision of said section that affidavit in question was made. The section plainly states that the affidavit shall be made by the party. This would seem to preclude the making of the affidavit by the attorney.
We are of the opinion that the affidavit made by the defendant’s attorney, in this case, was void and of no effect, and in no manner affected the venue of the action. The affidavit should have been made by the defendant. The above section refers exclusively to practice in the justice court.
In an appeal from a justice court upon questions of law alone, the notice of appeal should specify that the appeal is upon questions of law alone; and where an appeal is taken and such specification is not made in a notice of appeal, we think the appeal would not be effective, but, in the case at bar, we think stipulation entered into between the parties to the action removed the necessity for such specification being inserted in the notice of appeal. The stipulation is as follows: “It is stipulated between the above parties by their respective at*559torneys that the appellant herein is appealing upon questions of law-only, and is asking the court to review only the errors set out in the specification attached to his notice of appeal, and is not asking for a trial of the facts in the case in the district court, and is just seeking to have the court try the questions of law raised by the specification attached to the notice of appeal.”
It is clear from such stipulation, that plaintiff understood and knew that the appeal was upon questions of law alone. He was in no way deceived or misled, and he had all the notice that he would have had had the proper specification, above referred to, been inserted in the notice of appeal.
Judgment appealed from is reversed, and the case remanded for further proceedings in harmony with this opinion.
Plaintiff is entitled to the costs.