Barkdull v. Callanan

33 Iowa 391 | Iowa | 1871

Day, J.

1. venue: change of. I. There was no error in overruling the application of E. M. Dodge for a change of forum. At the time this application was passed upon by the court, E. M. Dodge had .no standing in the case. Her petition of intervention had been stricken from the files. Her application for leave to refile it, and also to be substituted as plaintiff in the action had not been passed upon. So far as legal rights are concerned she was at that time a mere stranger to the controversy. It cannot be that a stranger can come into a case, and by a mere application for leave to intervene, or to be substituted as a party to the cause, before the merits of the application are determined, before it is ascertained that he is entitled to become a party, or has any interest in the controversy, secure a change of forum, or a change of venue. Such a ' course would be productive'of incalculable hindrance and cost to litigants. The objections to it are too numerous to admit of mention, and too apparent to require it.

2. Practice : pleadings. II. The application for intervention was determined by the court upon the merits on the 15th day of February, 1870. The petition for intervention was filed in vacation, as is authorized by section 2932 of the Revision. The record shows that the case came on to be heard on the petition of E. AL Dodge to intervene. And that it was ordered by the court that the prayer of the petition be overruled. In addition to this the motion to strike the petition from the files was sustained. We cannot determine the correctness of this ruling, for no exception was taken to it. Appanoose County v. Walker et al., 23 Iowa, 26; Phipps v. Penn, id. 30; Soup v. Smith, 26 id. 472. The question passed ■upon March 31,1871, was simply a motion to bo permitted to file the same petition, the prayer of which had been previously denied, and which had been on motion stricken from the files. It is not competent for a party thus to bring again before a court a matter already determined.

See Parker v. Slaughter, 23 Iowa, 125. We do not hold that the court might not, in the exercise of a sound discretion, have permitted this petition to be refiled. But we will not reverse for refusal to grant permission to refile a paper, which has upon motion been stricken from the files without objection, when no fact appears to change the rights or relations of the parties.

III. The motion passed upon in the remaining ruling of the court was not a general one, that E. M. Dodge be allowed to become a party to the controversy, but that she be substituted as plaintiff. The record recites: “ On the same day said Dodge moved the court that she be sub stituted as plaintiff, setting forth as cause therefor the conveyance to her of said premises.” The plaintiff being served with a rule to show cause why such substitution should not take place, resisted the application, and denied that said Dodge had any interest in the premises.

Under such circumstances it seems clear that the court did not err in refusing to permit appellant to supplant the plaintiff in the prosecution of the cause.

Affirmed.