Allen v. Van

Isbell, J. Tbe plaintiff bad a clear right to withdraw bis suit, at any time before answer filed. Code, 1801; Burlington & M. Bailroacl Company v. Sater, ante, 421. This right was bis, without leave of tbe court. After withdrawing bis suit, nothing remained to transfer to another county. In granting tbe change of venue^then, tbe court erred. With regard to tbe second ground assumed as error, by tbe appellant, we bold tbat tbe statute contemplates tbat a defendant shall be compensated for his actual necessary trouble and expenses, in getting tbe venue set right, when sued iivawrong county, whether be attends in person, or by another. There is nothing before us showing what these expenses actually were; and we must presume, 'that tbe court had sufficient evidence to justify its finding in this particular. Tbe judgment of tbe court, granting tbe change, will be reversed, and tbe court will enter a discontinuance of tbe cause. So much of tbe judgment as relates to costs, and for trouble and expense in attending at tbe wrong county, is affirmed.