(Emphasis added). In each of the cases of Thorne v. Milliken, 57 Okla. 735, 157 P. 914, 915 (1916) and Norman v. Campbell, 188 Okla. 328, 108 P.2d 789 (1940), referred to in Carnation, the actions were described as being for penalty. In each such case, a principal question was as to the identity of the county in the courts of which venue would lie.

Defendants contend that the usury statute is a direct parallel to the private remedy invoked in this action; that the former "directs recovery of double the amount of interest paid with attorney's fee", while the latter "provides the recovery of three-fold the damages sustained, together with attorney's fees." In the case of Norman v. Campbell, 188 Okla. 328, 108 P.2d 789, we held that an action to recover a statutory penalty for exaction of usury was required to be brought in the county wherein the cause of action or some part thereof arose. In the earlier case of Thorne v. Milliken, et al., 57 Okla. 735, 157 P. 914, 915, we said:

Defendant argues with force and merit (1) that an action for the recovery of a penalty or forfeiture, imposed by statute, must be tried in the county where the cause, or some part thereof, arose, subject to the power of the court to change the place of the trial, G.S., 1-77, and (2) that the forfeiture of interest, and the penalty for usury are imposed by statute. G.S., 24-2. All v. Mtge. Co., 104 S.C. 239, 88 S.E. 529; Norman v. Campbell (Okla.), 108 P.2d 789. Even so, the record on this appeal fails to show in what county the cause of action arose. It is true that defendant sets forth in his motion, as a ground for removal, that the complaint shows that the first alleged cause of action, upon which plaintiff seeks to recover, is for the "recovery of a penalty or forfeiture, imposed by statute," growing out of matters and transactions alleged to have occurred in Craven County, where the alleged cause of action, if any, arose.

We are convinced from a reading of the authorities cited by defendants that the better rule is to say that the issue should be timely raised when it is first apparent on the record and available to a defendant prior to the submission of the case to the trier of the facts. Norman v. Campbell, 188 Okla. 328, 108 P.2d 789. In this case the trial judge would not have been justified in dismissing the action as to the nonresident defendants, on a plea to the venue, prior to the voluntary dismissal as to the resident defendants, unless it could have been shown that plaintiff made resident defendants defendants from bad motives insofar as nonresident defendants were concerned. It must be obvious that this would be a difficult thing for nonresident defendants to show.