181 Iowa 892 | Iowa | 1917
“Polk County, 1
“State of Iowa, .j
SH'
“I, Hymon Levich, being duly sworn, depose and say that I am the plaintiff in the above action; that the Atchison, Topeka & Saute Fe Eailway had and has an agency in the city of Des Moines; that the check in question was mailed from the paymaster to the local agent or agency, and by or under the authority of said agent, the check was delivered.”
Under this affidavit the plaintiff therein claimed the benefit of Code Section 3500, which provides that, when such corporation maintains an office or agency for the transaction of business in any county, actions may be brought in such county upon any transaction growing out of the business of such agency. This contention was met by a showing that one Larrimer was the only agent of the defendant railway company in Polk County, and that the business of his agency was confined to matters connected with the transportation of passengers and freight over said railway; that such agency had no duty to perform in the distribution of pay checks to employees; and that such office or agency
We think the showing of the railway company was definite and undisputed, that it had no office or agency in Polk County except that of Larrimer, and that the check upon which the suit was founded did not grow out of the business of such office or agency in any manner; and that, therefore, the only proper place for the bringing of suit against the railway company was in accordance with the provision of Section 3497, which would require such suit to be brought in Lee County.
“Mr. W. N. Jordan,
“304 Clapp Block,
“Des Moines.
“Dear Sir: Replying- to your letter of February 13th, relative to our Arkansas River Shop Check No. 28601 in favor of Ignacio Mendez, amounting to $30.01, which was cashed by Mr. Hymon Levich and the check dishonored by this office account payee, claiming forged endorsement. Beg to state this check was forwarded to tké agent of the C. R. I. & P. lines at Valley Junction, Iowa, on June 22nd, 1916.
“Yours truly,
“E. L. Copeland, Treasurer.”
“304 Clapp Block,
“Des Moines, Iowa.
“Dear Sir: Deferring to your letter of February 13tk, and to mine of the 15th regarding forged endorsement on our Arkansas Division Shop, pay check No. 28601, drawn in favor of Ignacio Mendez, amounting to $30.01, covering his May, 1916, wages. Attorneys for Mendez are pressing me for a duplicate pay check in settlement of these wages. And before issuing same, I should like to ask if any action is being contemplated by Mr. Levich, the first endorser of the check. Unless some action is taken immediately, I shall have to make settlement with Mendez on the basis that his endorsement on the above mentioned check was forged and his money never received by him.
“Yours truly,
“E. L. Copeland, Treasurer.”
The letters thus set forth purport to be in response to a letter written by the plaintiff’s attorney, which is not included in the record. The full significance, therefore, of this correspondence cannot be ascertained from- this record. The claim for the plaintiff is that this correspondence lulled him into a sense of security, and in effect induced him to bring his action in Polk County, because the check had been mailed to Polk County to an agent of another railroad company. It does appear therefrom that the correspondence was had after the purported endorsement of the check had been repudiated, on the ground that the payee of the check challenged the alleged endorsement as a forgery. We see nothing in the correspondence which can be said to have lulled the plaintiff into a sense of security; nor does it contain any admission inconsistent with the showing made by the affidavits. The correspondence indicates further that no objection or defense is urged against the check as orig
There is the further consideration that the amount involved was only $30, and no appeal from a final judgment thereon could be had except upon certification. We have held that, ifi such a case, certiorari will lie for want of a right of appeal. Chicago, B. & Q. R. Co. v. Castle, 155 Iowa 124. It is also urged that we cannot interfere with the discretion of the trial court, nor with its finding of facts upon conflicting evidence. We find no real conflict in the evidence. The facts are undisputed. The statute confers no discretion upon the trial court to refuse a change of place of trial upon such showing.
We must hold therefore, that the order of the trial court was an illegality, within the meaning of the statute. It is accordingly — Annulled.