
    Allen v. Van.
    A plaintiff has a clear right to dismiss his suit, at anytime before an answer is filed, without the leave of the court.
    The statute contemplates that a defendant shall be compensated for his actual, necessary trouble and expense in getting the venue set right, when sued in a wrong county, whether he attends in person or by another.
    Where suit was instituted in one county against the defendant, who resided in another county, and at the return term of the court, the defendant appeared by attorney, and applied for a change of venue to the county in which defendant resided, and claimed compensation for attending in the wrong county, pending which application, no answer having been filed, the plaintiff asked leave to dismiss his suit; and where the court granted the change of venue, and awarded twenty dollars to defendant, for expenses in attending at the wrong county; Held, 1. That after the withdrawal of the suit by the plaintiff, there was nothing to transfer to another county, and the court erred in granting the change of venue; 2. That the court properly granted the defendant compensation.
    
      Appeal from the Pollc District Court
    
    Plaintiff instituted bis suit in Polk county, against the defendant, a resident of Harrison county. At tbe return term, defendant appeared by attorney, and applied for a change of venue to the latter county, and also claimed compensation for trouble and expense occasioned by attending in the wrong county. Pending this application, plaintiff asked leave to dismiss his suit, no answer having been filed. The defendant had not attended in person at Polk county.
    
      Tbe court granted tbe change of venue, and awarded twenty dollars’ expense, for attending in tbe wrong county. Plaintiff appeals, and insists, first: That tbe granting a change of venue, after be bad applied to dismiss bis suit, was erroneous; second: tbat tbe compensation allowed by section 1702 of tbe Code, for trouble and expense of attending in the wrong county, is solely for tbe trouble and expense of a personal attendance: and as it appears tbat defendant appeared by attorney, and did not appear iñ person, there was, therefore, error ; and tbat counsel fees are never taxed against a losing party.
    
      'Williamson & Brown, for tbe appellant.
   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.  