(dissenting).
I dissent. The first question is whether the place of trial was changed from Fillmore to Olmsted county by the making and filing of the affidavit as to the defendant’s residence, and the demand for a change of the place of trial. Its solution depends upon the answer to be given to the question: Was the county designated in the complaint as the place of trial of the action the proper county, *379within the meaning of Gr. S. 1894, § 5188, as amended by Laws 1895, c. 28, which is to the effect following: If the county designated for that purpose in the complaint is not the proper county, the action may, notwithstanding, be tried therein, unless the defendant, before answering, demands in writing that the trial be had in the proper county, accompanied by an affidavit as to the actual residence of the defendant; but if such demand be made, and proof thereof be filed, the action is thereby transferred to the county where defendant resides. The court, however, may change the place of trial in any case when there is reason to believe that an impartial trial cannot be had in any county where the action is pending, or when the convenience of witnesses or the ends of justice would be promoted by the change, or upon the consent of the attorneys.
The place of trial of an action under our system of practice is never formally and in express terms designated in the complaint. The commencement of an action in the district court of a particular county, specifying that county in the complaint in the title of the cause, is the designation of the place of trial, within the meaning of the statute; or, in words more exact, the naming of the district court of a particular county in the title of the action at the top of the complaint is the designation of that county as the place of trial, precisely as the venue was laid under the common-law system of pleading by a statement at the top of the declaration indicating the county for trial. No other way of designating the place of trial in the complaint is known to our practice. Now, the plaintiff must state in his complaint the title of the cause, specifying the court and the county in which the action is brought. G-. S. 1894, § 5231. In practice the court and county in which the action is brought are always stated together. The designation of the court in which the action is brought includes a specification of the county in which it is brought. Hence, if an action is brought in the district court of a county in which the law says it shall be brought, and the action is so entitled, the proper county for trial is thereby designated. No other county could be properly designated as the place of trial, for it would be absurd to specify in the title of an action that it was brought in the district court of a particular county, designat*380ing it, but that it was to be tried in another county, naming it, in case the defendant resided therein.
The question, then, in its last analysis, is this: Was this action brought in the county in which the law required it to be brought? It certainly was, for it is admitted by the pleadings that it was brought in the county of the plaintiff’s residence. The statute is mandatory that an action for a divorce must be brought in the county where the plaintiff resides. Section 4794. Therefore, the proper county for trial was designated in the complaint in this action, and the defendant could not, under the provisions of section 5188, as amended, change the place of trial summarily and on his own motion by making and serving the affidavit and demand, for it is only when “the county designated for that purpose in the complaint is not the proper county,” that the place of trial can be so changed.
In reaching this conclusion I have not overlooked section 5185, which provides that in all cases, except as otherwise provided, the action shall be tried in the county wherein the defendant resides. But it is otherwise provided by necessary implication as to an action for divorce, by the statute requiring the action to be brought in the county where the plaintiff resides. If this be not so, then the two statutes, read together, are in legal effect this: An action for a divorce shall be commenced in the county where the plaintiff resides, but it shall be tried in the county where the defendant resides: that is, the action shall not be tried in the county where it must be commenced in case the parties reside in different counties, and the defendant so elects. Any interpretation of the statutes leading to such an irrational conclusion must be rejected, especially so in view of the fact that no other county can be properly designated in the complaint as the county for trial save the one in which the action must be brought. The remedy for any supposed abuses of the statute as thus construed is by application to the court.
2. Is the finding that the defendant wilfully deserted the plaintiff for one year next before the commencement of this action sustained by the evidence? In my opinion it is. The defendant on May 4, 1897, commenced an action against the plaintiff for a divorce on the *381ground of her adultery with a man in his employ, specifying in his complaint four separate offenses. Thereupon, and on May 10, she left her husband’s house in the county of Olmsted, and went to her father’s house in the county of Fillmore, where she has ever since resided. She answered in the first action, denying the charges of adultery, and also, by way of a cross bill, alleged cruel and inhuman treatment by her husband, and demanded a divorce with alimony. The issues as to her adultery were tried by a jury, and a verdict returned June 29, 1897, exonerating her from the charges. The issues of the cross bill were tried by the court, and on September 13, 1897, findings of fact were made in favor of the husband. As a conclusion of law the court found that the action should be dismissed as to both parties. Judgment, however, was not actually entered until March 8, 1899, or four days after this action was commenced; but, so far as the merits of the action were concerned, the litigation in fact ended with the filing of the findings of fact.
The evidence offered on the trial of the present action by the plaintiff to establish her charge of wilful desertion of her by the defendant was to the effect following: That on the trial of the first action he publicly and falsely on the witness stand charged her, of his own personal knowledge, with having committed adultery; that the charge and his testimony were false, and so found to be by the jury; that after she was thus vindicated by the jury he made no amends for his treatment of her, retracted none of the charges of adultery against her, sought no reconciliation with her, nor contributed anything to her support. The majority opinion holds, in effect, that the desertion of the plaintiff, if any, did not and could not commence until the first action was ended by the entry of the formal judgment, because it was the right and duty of the plaintiff to live separate and apart from the defendant pending the action. When his wife had been vindicated, and the litigation in fact ended, was the time when the defendant ought to have made amends for his conduct if he desired her to return, so as to. make it possible for her to return to his home without submitting to the abject ignominy and degradation of living with a husband who had falsely and publicly testified on oath, as of his own personal knowledge, that she was an adulteress, and who by his silence persisted in the *382charge. His failure to so do would seem to justify the finding of the trial court to the effect that it was the defendant’s continued misconduct which forced the plaintiff from the matrimonial home and prevented her return to it. This constitutes desertion of her by him. Such desertion dates, in my judgment, from a reasonable time after the practical ending of the litigation in the first action, and the vindication of his wife, which was, in any event, more than one year next before the commencement of this action.