Gambar halaman

thereon should be bronght in the that county, under this section: Man-
county where defendants resided: Ind. ley v. Wolfe, 24-141.
Sch. Dist. of Mason City v. Reichard, This section is permissive and not

| mandatory. Plaintif may still sue
Where plaintiff agreed to lay a rail- l in the county where the defendant
road track' for defendant in Lucas Co., resides: Troy, etc., Mill Co. v. Bowen,
and defendant agreed to deliver iron 7-465.
and material for laying the track at This section only applies to cases
the end thereof, and pay plaintiff any where personal service is had upon
marriage sustained by reason of delay defendant within the state. If the
in finishing the grade, held, that as proceedings are by attachment
iu damages for delay, etc., the action against a non-resident defendant, suit
could not be brought in Lucas Co., as can only be brought where the prop-
the place of performance of the con- erty is attached. ($ 2580): Hedrick v.
tract, but seinble that as to damages Brandon, 9–319.
for not delivering iron, etc., at end For similar provision in actions be-
of track, action might be brought in I fore a justice, see $ 3513.

Sec. 2582. Actions may be brought against railway corpora- Comır.or care tions, the owners of mail stages, or oth r line of coaches or cars, riers.

9 G. A. ch. 169 including express companies, car com a ies, telegraph and canal si

12 G. A. ch. 172 companies, and the lessees, companies, or persons operating the 2." same, in any county through which the line or road thereof passes, 14 G. A. ch. 45

21. or is operated.

A railway corporation has a resi- | acts business: Baldwin v. M & M. dence in the counties through which R. Co., 5-:;18; Richardson v. B. & M. the road passes and in which it trans- R. R. Co., 8-260. Sec. 2583. An action may be brought against any corporation Construction

of ruilways company, or person, engaged in the construction of a railway, it

? telegraphs or telegraph line, or canal, on any contract relating thereto, or to canals,

14 G. A. ch. 25, any part thereof, or for damages in any manner growing out of 1.“ the work thereon, in any county where such contract was made, or performed in whole or in part, or where the work was done out of which arose the damage claimed.

SEC. 2584. Insurance companies may be sued in any county Insurance comin which is kept their principal place of business, in which was p


Same, :), made the contract of insurance, or in which the loss insured against occurred.

SEC. 2585. When a corporation, company, or individual, has Office: agency: an office or agency in any county for the transaction of business, suits

suits growing

out of. any suits growing out of or connected with the business of that R.2,801.

tul, 1705. office or agency may be brought in the county where such offices or agency is located.

This section is permissive and not, way passes: See $ 25382 and notes. mandatory. The suit, if against a The sect on merely fixes the county non-resident, may be brought in the in which suit shall be brought; it does usual manner of commencing actions not detine the manner in wbich jurisagiinst non-residents : Dean . | diction over the person is to be acWhite, 5-266; and if against a rail- quired. (See SS 2612, 2613): Centenway corporation, may be brought in nial, etc., Ass'n v. Walker, 50–75. any county thiough which the rail-! See, also, Milligan v. Daris, 49–126.

SEC. 2586. Except where otherwise provided herein, personal Place of refactions must be brought in a county wherein some of the defend- R 29900 ants actually reside. But if none of them have any residence C. '51, e 1701.

14 G. A. ch. OL within this state, they may be sued in any county wherein either of them may be found. But in all actions upon negotiable paper, except when made payable at a particular place, in which any maker of such paper, being a resident of the state, is made defend

ant, the place of trial shall be limited to a county wherein some one of the makers of such paper resides.

A personal action may be brought | 7-463. in the county where one of the de- ! The fact that an attachment is fendants resicies and the fact as to sought against property in another whether the petition is sufficient to county than that of defendant's resientitle the plaintiff to recover against dence will not change the rule as to such defendant cannot be determined the place of bringing suit: Gates v. on a motion for change of venue to Wagner, 46–355. the county where other defendants The fact that the defendant is a reside: Armstrong v. Borland, 3.)- resident of another state will not de. 537.

feat the jurisdiction of our courts: Previous to the enactment of the Swan v. Smith, 26–87. clause in relation to negotiable paper. A person who, having relinquished it was held, that when a joint action his residence in one county, is in the was brought against the maker and act of removing to another with inindorsers of a note it might properly tent of residing within the latter, has be brought in the county where an not “a residence within this state, indorser resided: Stout v. Noteman, and may be sued in any county where 30-114 ; and that the fact that guar- found. The meaning of residence as antors or indorsers become parties to here used is more precise and limited the note subsequent to the maker, if than that of domicile: Cohen 1. Danin good faith, would not change the iels, 25-88. rule: Troy, etc., Mill Co. v. Bouen, I

SEC. 2587. Where an action embraced in the preceding secBame.

tion is against several defendants, some of whom are residents and others non-residents of the county, and the action is dismissed as to the residents, or judgment is rendered in their favor, or there is a failure to obtain judgment against such residents, such non-residents may, upon motion, have said cause dismissed with reasonable compensation for trouble and expense in attending at the wrong county, unless they, having appeared to the action, fail to object before judgment is rendered against them.

Sec. 2588. If, after the commencement of an action in the Change of resi- county of the defendant's residence, he remove therefrom, the dence after suit service of notice upon him in another county shall have the same trought.

effect as if it had been made in the county from which he removed.

Sec. 2589. If a suit be brought in a wrong county, it may Effect, if there be prosecuted to a termination, unless the defendant, before brought in answer, demand a change of place of trial to the proper countv. R. : 812. In which case the court shall order the same at the cost of the C. 51, 1702,

plaintiff, and may award the defendant a reasonable compensation for his trouble and expense in attending at the wrong county. And if the sum so awarded, and costs, are not paid to the clerk by a time to be fixed by the court, or if the papers in such case are not filed by the plaintiff in the court to which the change is ordered ten days before the first day of the next term thereof, or if ten days do not intervene between the making of said order and the first day of the next term of said court, ten days preceding the first day of the next succeeding term thereof, in either event the action shall be deemed to be discontinued.

On the hearing of an application of a counter showing on that question: a defendant for the transfer of an ac-Turnier 1. Jaddox, 6-189. . tion to another county upon a show- This section has no application ing that it is his place of residence, where an action is improperly changed the plantiff should be allowed to make to another county under the next

section. In such case plaintiff does, late: First Nat. Bank of Muscatine v.
not waive the remedy by going to Krance, 50--235.
trial in the wrong county: Ferguson This section does not apply to ac-
8. Daris Co., 51-220

tions before a justice of the peace:
Default having been set aside and Post 0. Brownell, 36-497; Meunch v.
defendant granted a c'rtain time to | Breitenbach, 41-527.
answer, heli, that an application for As bearing upon this section, see
a change of place of trial under this Laird v. Dickerson, 40-665, in note
section, made after the expiration of to § 2580.
the time given to answer was too



[ocr errors]

SECTION 2590. A change of the place of trial, in any civil ac- Wher granost.

R. 2.S03. tion, my be had in any of the following cases:

C. '51, 21704 1. Where the county in which the action is pending is a party 13 G. A. ch. 167, thereto, if the motion is made by the party adversely interested, and the issue be triable by jury;

2. Where the judge is a party, or is directly interested in the action, or is connected by blood or affinity with any person so interested nearer than the fourth degree;

3. Where either party files an affidavit verified by himself and three disinterested persons, not related to the party making the motion nearer than the fourth degree, nor standing in the relation of servant, agent, or employe of such party, stating that the inhabitants of the county, or the judge, is so prejudiced against him, or that the adverse party or his attorney has such an undue influence over the inhabitants of the county, that he cannot obtain a fair trial;

4. By the written agreement of the part:es, and their attor

[ocr errors]

5. If the issue is one triable by jury, and it is made apparent to the court or judge that a jury cannot be obtained in the county where the action is pending, then, upon the application of either party, a change of place of trial shall be granted to the nearest county in which a jury can be obtained. Provided, hoirever, that not more than two changes to either party of the place of trial Number of

changes liin. shall be allowed for any of the causes enumerated in this section ; ited nor shall a change of venue from the county be allowed in case of appeal from a justice of the peace; nor shall a change of the place of trial be allowed when the issue can only be tried to the court, for any objection to the inhabitants of the county, or for the objection that the adverse party or his attorney has such an undue influence over the inhabitants thereof, that he cannot obtain a fair trial; and, provided, that after any change of venue has been taken as herein provided, and a trial had and the jury been discharged or a new trial has been granted them, a subsequent change of venue may be taken for any of the causes mentioned in said


[As amended by 17th G. A., ch. 118, which added the provisos.)

IN GENERAL : Where a party seek-! A change of venue cannot be ing a change brings himself within granted on application of a stranger the provisions of the statute, it is er- to the action, who has applied tor, but ror to refu.e the application. The not yet obtained leave to intervene: court has not in civil cases the discre- Burkiluli r. Cullanan, 33-391. tion confided to it in criminal cases. The provisions of this section are by SS 4368, 4374 : Turner' v. Ilitch- applicable in a special proceeding to cock, 20–310; Miller v. Laraucay, 31-1 disbar an attorney: The State 0. 5:18; Jones r. C. & N. W. R. CO., Clark, 46-155. 36-68 ; Moorman v. Moorman, 39–1 PAR. 1. The fact that under s c460. But the court may protect it- tion 3:370 the penalty recovered in self f om imposition, and ti ough the an action on a bail bond goes into the affidavit be in due form it may re-county school fund does not make the quire the disinterested persons to be county a party to such action so as to produced, and in a case where they be a ground for change of venue: were not found and information con- The State v. Merrihew, 47-112. cerning them was refused and other Par. 3. An affidavit of witnesses suspicious circumstances were shown, that they “verily believe" that preheld, that the application for change, judice on part of the judge exists, is though sufficient in form, was proper-suthcient: Jones 1. C. & V. W'. R. ly overruled : Daris v. Rivers, 49– Co., 36-68; and the facts showing 4:35.

such prejudice need not be stated: Unless the contrary appears from Turner v. Hitchcock, 20–310. the record, the action of the court in An application for change on the granting a change will be presumed gro nd of prejudice of the judge not correct: Rumsey 1. Bush, 27-17. made until after a continuance is had,

After an unconditional change is is too late when it does not appear granted, the court in which the cause that the grounds therefor were not was sending has no further jurisdic-known prior to the continuance: tion: Campbell v. Thompson, 4 Gr. Finch v. Billings, 22-228; and see 415; Farr v. Fuller, 1-83; but it cases under next section. may by consent of parties re-docket! Where the application is not supthe cause and proceed to trial thereof: ported by affidavits of “three disinEckles v. Kinney, 4-539.

terested persons "as here required it Where a party has duly objected to should be overruled: Ferguson ?'. a change of venue being granted, he Daris Co., 51-220. does not waive such objection by ap- Counter affidavits cannot be prepearing in the court to which the sented as provided in criminal cases: cause is changed and going to trial: Jones v. C. & N. W. R. Co ,::6-68. Jones 0. C. & N. W. R Co., 36-65; Par. 4. The written agreement reMcCracken v. Webb, 36-551; Fergu- ferred to in this paragraph will be son ^. Duis ('0., 51-220.

sufficient if signed by the parties or Where a change is improperly their attorneys. The signatures of granted, prejudice therefron will be both parties and attorneys is not esconclusively presamed: Fergusun v. sential: Oltrogye v. Schutte, 51-279. Da is Co., supra.

SEC. 2591. The application for a change of place of trial mav l'o whom and be made either to the court or to the judge in vacation, and, if A hen made. R.22801.

made in term time, shall not be awarded until issue be made up C. '31, 2 1708. unless objection be to the court; nor shall such application be al

lowed after a continuance, except for a cause not known to the affiant before such continuance; and after one change, no party is entitled to another for any cause in existence when the first change was obtained.

A change cannot be allowed after a have a second, except for a cause not
continuance: Dean v. White, 5–266 ; existing when the first was granted:
Ferguson r. Daris Co., 51-220, unless Schaentgen v. Smith, 49-359.
the affidavit of the change state that A change should not be granted in
the cause for which it was asked was vacation unless notice of the applica-
not known to the applicant before tion therefor has been given the op-
such continuance: VcCricken 1. posite party as provided in $ $ 2914,
Webb, 36-551; Finch . Billings, | 2915: Preston r. Winter, 20-261 ;

Loomis v. McKinzie, 31-425.
After one change a party cannot ! It cannot be determined until the

[ocr errors]

ia-les are made up whether “the the county cannot therefore he made issue can only be tried to the court," even in vacation until the issues are and an application for change on ac- made up: Gibson v. Abbott, 50–155. .count of prejudice of the people of

SEC. 2592. The place of trial shall be changed to some other to what county county in the saine district or circuit, unless the objections are to or court.

R. 2:805. the judge, or the objections made appear from the affidavits to c. 31. a 1707. exist as to all the other counties in the district, and shall be to the !?. G. A. ch. 80, most convenient county to which no objection is made. When- 14 G. A. ch. 167, ever the change shall be granted on account of the prejudice or ? disai ility of the judge, the action shall be transferred to the district or circuit court of the same county, unless objections exist as to both the judges, in which case it shall be transferred to the most convenient county in some other district or circuit.

The “most convenient county" is / the relative distance of different counnot necessarily the one nearest in ties. And where nothing is shown point of distance. The question as to the contrary, it will be presumed to which county is most convenient that the county selected was, within must be determined to some extent by the meaning of the law, the most the peculiar circumstances of each convenient: Allen v. Shiff, 2-43, case, taking into account the distance When the objei-tion is to the judge, of parties and witnesses, the conve- the change should be to the dis rict nience of attorneys, and the prospect or circuit court of the same county: of reaching a speedy trial, as weil as | Polk Co. v. Hierb, 37-361. Sec. 2393. If an application for the change is made in vacation, How made dur.

ing Vacacion. five days notice of the same, with a copy of the affidavit, shall be R

R. 2800. served on the adverse party or his attorney; and if the judge C. '51, ė 1709. grant the change, he shall forthwith transmit his order to the clerk, together with all the papers used before him. Sec. 2594. If the order for the change is granted in vacation, When deemed

1. perfectel: (0. the same must be perfected by noon of the sucond day after the sequences of order is received by the clerk, and, if granted during term time, falure.

R. 328071810. the same must be perfected by the morning of the second day C. '31, 1710. thereafter or before the cause is reached for trial, if sooner reached, or such change, whether granted in term or vacation, will be deemed waived and the cause tried as though no such order had been granted. When the change has been perfected or agreed to by the parties, the clerk must forth with transmit to the clerk of the proper court, strongly enveloped and sealed, a transøript of the record and proceedings, with all the original papers, having first made out and filed in his office authenticated copies of such original papers ; but, if less than all of several plaintiffs or defendants take such change, the original papers shall not be so transmitted, but a copy thereof. And as to those who take no change, the cause shall proceed as if none had been takeni, except that if the place of trial is changed to a court in the same county, no transcript or copies shall be made out, but the original papers shall be transmitted.

If costs are not paid within the they are paid before any action is time provided, a subsequent payment taken by the court to vacate the order: will not effect the change: Stryker v. | Bacon v. Block, 33-162. Ricers, 47–108, 110.

The provisions of this section as to In case of a change granted during the time within which the change is term, the payment of costs during to be perfected, do not app'y to cases the second day after the granting of where the venue is changed by agreethe order, though not by the morning | ment of the parties: Carroll Co. v. of that day, will be sufficient, provided | Am. Em. Co., 37–371.

« SebelumnyaLanjutkan »