
    ALFRED DAHL v. M. B. STOFFELS AND ANOTHER.
    
    May 13, 1938.
    No. 31,730.
    
      Louisell & Louisell, for relator.
    
      Leo E. Stenger, for respondent M. B. Stoffels.
    
      Otis, Faricy & Burger, for respondent Clement F. Sculley Equipment Company.
    
      
      Reported in 279 N. W. 578.
    
   Per Curiam.

Respondents move to vacate a judgment for costs entered in this court in favor of relator as the prevailing party in a proceeding by mandamus for a change of venue for the convenience of witnesses. The motion is made upon the ground that the plaintiff-relator, having brought the action in another county than the county of defendants’ residence, was obligated to pay each ten dollars as provided by 2 Mason Minn. St. 1927, § 9487-1, and, not having so done, could not properly have entered the judgment for costs.

The motion to vacate the judgment is denied. It is plain that the provision in said section saying “no judgment shall be entered by plaintiff in any cause” refers to a judgment upon the cause of action; for the procedure when payment has not been made, nor waiver obtained, is by taxing the same as costs against plaintiff if defendants prevail on the merits or deducting the same from plaintiff’s judgment if plaintiff prevails. The proper place for defendants to have their rights redressed or enforced under that section is in the court below.

Mr. Justice Stone, because of illness, took no part in the consideration or decision of this case.  