(dissenting).
The defendant’s two arguments that this is an action for injuries to real property pursuant to SDCL 15-5-1(2), and recovery of personal property distrained under SDCL 15-5-1(4), have been rightfully cast aside by the majority opinion. I dissent, how*96ever, because this action sounds in conversion of personal property or for the recovery of damages to such property. Therefore, suit must be brought and tried in the county where the damages were inflicted or the cause of action arose. SDCL 15-5-8.
To determine this case’s proper venue, the allegations in the complaint must be carefully read. While the word “conversion” is not expressly stated in the complaint, the plaintiff in four separate counts alleges that the defendant did “take down and destroy a highway outdoor advertising sign” in Davison, Beadle, Butte, and Day Counties. In addition, the plaintiff on two occasions stated in its brief that this was an action to recover monetary damages for the injuries to its personal property.1 The nature of an action when the place of trial is in question is determined by the allegations. Meihak v. Schreckenghaust, 67 S.D. 603, 297 N.W. 122 (1941).
The court in Herron v. Fox, 67 S.D. 36, 288 N.W. 459, 460 (1939) stated:
The statutes of this state fix a definite place of trial for certain actions, render the venue optional with the plaintiff in certain other actions, and provide “In all other cases the action shall be tried in the county in which the defendant or defendants, or any of them, shall reside at the commencement of this action * * *.”
The place of trial for actions in conversion of personal property or for the recovery of damages to such property are fixed by statute. Under SDCL 15-5-8, the only options available to the plaintiff in bringing such action are: (1) where the damages were allegedly inflicted or (2) where the cause of action arose. It sufficiently appears that the four counties where the damages were allegedly inflicted are the same four counties where the cause of action arose. Plaintiff’s reliance on SDCL 15-5-6 is misplaced. That statute provides that an action shall be tried in the county where the defendant shall reside at the commencement of the action, but expressly excepts from its purview those actions described in SDCL 15-5-8.
The majority opinion stated that the court has given special construction to SDCL 15-5-6 and SDCL 15-5-8, citing Kayser v. Nelson, 44 S.D. 533, 184 N.W. 361 (1921) and Fargo v. Morgan, 50 S.D. 94, 208 N.W. 575 (1926). In both cases, the court construed Section 2327, R.C.1919, which is analogous to the present day statutes, SDCL 15-5-6 and SDCL 15-5-8. In Kay-ser v. Nelson, supra, the court distinguished actions to recover damages caused by bodily injuries from actions to recover for invasion of personal rights. The alleged cause of action in Fargo v. Morgan, supra, sounded primarily in deceit, although special damages to property were also alleged. In both instances, it was the defendant who requested that the statute be liberally construed to allow the case to be tried in the county of their residence. The nature of these two cases is inapplicable to the cause of action presented in this case.
The majority opinion now wants to stretch the construction of these two statutes to authorize the plaintiff to bring the action in the county where the defendant resides. Both statutes, when read together, clearly dictate otherwise.
The court in Meihak v. Schreckenghaust, supra 297 N.W. at 123 stated: “[T]he court has no discretion except to hear and grant an application based upon a ground which entitled a defendant to a change provided a timely demand and motion in due form are made.” Although the defendant’s motion for change of venue was based on improper grounds, i. e., for the recovery of an interest in real property, SDCL 15-5-1(1) and for the recovery of personal property dis-trained, SDCL 15-5-1(4), it is the plaintiff’s duty to commence the action in the proper county. If the plaintiff does not, this court, citing Kleiners v. Loeb, 64 Wisc. 343, 25 N.W. 216 (1885),2 in the case of Smail v. Gilruth, 8 S.D. 287, 66 N.W. 452, 453 (1896), has said:
“[I]t is his [plaintiff’s] duty to consent to the change to the proper county when *97demanded by the defendant; and if he refuses to assent to such change, when demanded, it is the duty of the court, on motion made within the proper time, to make an order changing the place of trial to the proper county.”
Venue in this case must be determined pursuant to 15-5-8 which vests no discretion with the circuit court. Where no discretion is conferred upon the court by statute, the court does not possess the discretion to deny a motion for change of venue. 77 Am.Jur.2d Venue § 82. The “convenience of witnesses argument” under SDCL 15-5-11 is of no consequence. The right of a defendant to have the place of trial changed to the proper county is absolute, if the demand and motion therefore are duly made, and the court cannot retain the case on the ground of the convenience of witnesses. McDonald v. State, 86 S.D. 570, 199 N.W.2d 583 (1972); Olson v. City of Sioux Falls, 63 S.D. 563, 262 N.W. 85 (1935); Ivanusch v. Great Northern Ry. Co., 26 S.D. 158, 128 N.W. 333 (1910); and Small v. Gilruth, supra.
There is sufficient showing in this case to conclude that SDCL 15-5-8 governs this action. Consequently, under either of the available statutory options allowed the plaintiff, the actions belong in the respective counties where the damages were inflicted or the cause of action arose, namely the four counties where the signs were located and damaged.
It is for these reasons I would reverse the circuit court and order that defendant’s motion for change of venue be granted.
. Plaintiff and Respondent Brief, pp. 4 and 6.
. This case was miscited in Smail as Meiners v. Loeb.