concurring.
I join in parts 2, 3, and 4 of Justice Levine’s opinion for the majority. I respectfully disagree that trial of an action for possession of real estate in Morton County could be summarily held in Bur-leigh County. Therefore, I do not join in part 1.
The majority opinion scarcely notices that a local trial for real estate has historic significance. The ancestory of this conviction in the common law traces to the Mag-na Charta. See paragraphs 18 and 19 of the Magna Charta in 13 North Dakota Century Code, p. 3. “In local actions, where possession of land is to be recovered, or damages for an actual trespass, or for waste, etc., affecting land, the plaintiff must lay his declaration or declare his injury to have happened in the very county and place that it really did happen; ...” Ill W. Blackstone, Commentaries on the Laws of England, § 371, *294. Deviation from that enduring tradition is not trivial.
The majority opinion does not cite or discuss Johnson v. Johnson, 86 N.W.2d 647 (N.D.1957), which was relied upon by Davis. In' Johnson, the landlord sued in Pierce County District Court to enjoin a former tenant from interfering with Botti-neau County farmland. This court reversed the restraining order, declaring that it was “void for want of jurisdiction on the part of the District Court of Pierce Coun-ty_” 86 N.W.2d, at 651. Tracing the history of the predecessor of NDCC 28-04-01 from territorial times through revision by the Code Commission in 1943 (adding “must be brought”), this Court declared that it was “a matter of jurisdiction rather than of venue and that unless the action is brought in the proper county the court has no jurisdiction over the subject matter.” 86 N.W.2d, at 651. Thus, the locale of the trial of real estate actions has been endowed with a jurisdictional quality in North Dakota. Today’s decision disregards that standing.
Of course, like all matters that come to the judicial branch of government, Hayden v. North Dakota Workers Compensation Bureau, 447 N.W.2d 489 (N.D.1989), the court has power to change the place of trial and disposition in a proper way and for a proper case. NDCC 28-04-01 says that venue is “subject to the power of the court to change the place of trial ... in ... cases provided by statute.” But in this case, the place was neither changed in a proper way nor for a proper reason.
The place of trial was scheduled for the Burleigh County Courthouse in the summons issued by the attorney for Stone-wood. Apparently, this was done arbitrarily and ex parte by Stonewood’s attorney because a Burleigh County judge had been designated to handle the case while the Morton County judge was on vacation. While we recognized the summary nature of eviction proceedings in South Forks Shopping Center, Inc. v. Dastmalchi, 446 N.W.2d 440 (N.D.1989). (Civil No. 890018; filed 9-26-89), we have not set aside due process. A change of the place of trial must be made by a judicial order. Jerry Harmon Motors, Inc. v. First National Bank & Trust Co., 440 N.W.2d 704 (N.D.1989). A judicial order needs a notice and a hearing. McWethy v. McWethy, 366 N.W.2d 796 (N.D.1985). At the opening of the trial in the Burleigh County Courthouse, the trial court overruled Davis’ objection to the place of trial. This fait ac-compli was not a proper way.
Nor was this a proper case. NDCC 28-04-07(3) authorizes a court to change the place of trial “[wjhen the convenience of witnesses and the ends of justice would be promoted by the change.” Convenience of witnesses was not involved. The trial *293court ruled that “no space was available in Morton County,” which was evidently based on an argument by Stonewood’s counsel that “this is the only place in which the hearing could take place within the [time] parameters of the statute.” If space, not time, was the reason, no “ends of justice” were “promoted.” When a customary courtroom is unavailable, any meeting room can be made suitable for dispensation of justice. Consecration of the facility is not a judicial prerequisite. Thus, the reason seems rather to have been the convenience of an assigned judge, who did not want to take time from his hectic schedule to go to the nearby county for a trial. The “ends” of the judge are not the same as the “ends of justice.” A judge’s convenience is not an acceptable reason for changing the place of trial.
In my opinion, the trial court misruled and abused judicial discretion in changing the place of trial. Since we are remanding for reconsideration for other reasons which I join in, I do not dissent. However, I would direct that proceedings on remand be held in Morton County, not in the Bur-leigh County Courthouse.