192 Iowa 1246 | Iowa | 1921
On August 17th, defendants appeared by Thomas L. Maxwell and Spence & Beard, attorneys, and at the request of their attorneys, were given 30 days’ time to file answer. On August 17, 1920, the answer of defendants, which was afterwards filed, was prepared, signed, and verified by appellants. On September 18, 1920, defendants filed the answer, admitting execution and delivery of the note sued on, but alleged fraud in its inception.
Subsequent to the filing of the answer, the cause was continued over to the November term, by the final adjournment of the August term. The November term, 1920, convened on the 1st day of November. At the November term, some time in November, the case was continued over to. the January term, 1921.
On the 23d day of December, plaintiff filed a trial notice that the ease would be brought to trial at the regular January term, 1921, to commence on January 3, 1921.
On December 28, 1920, defendants in the ease below, petitioners in this case, filed their motion or application for change of place of trial from Ringgold County to Union County, under Subdivision 6 of Section 3505 of the 1913 Supplement, on the ground that the note sued on was fraudulent in its inception and without consideration, and that their signatures were procured thereto by false and fraudulent representations. Resist-
The ground of the application for a change of place of trial is found in Subdivision 6 of Section 3505, Code Supplement, 1913, which was made a part of such section by the'Acts of the Thirty-third General Assembly. Prior to the enactment of this amendment to Code Section 3505, we have, on numerous occasions, been called upon to construe its provisions in connection with Code Section 3506. Section 3506 limits the time within which application should be filed. In every case where provisions of Code Section 3506 have been urged against the granting of the change, we have held that, if the case had been continued after the grounds of change were known to the party asking the change, the change would be refused. The provisions of Code Section 3506 are plain, and provide that no change shall be granted after a continuance, the wording being:
“Nor shall such application be allowed after a continuance. ’ ’
In Dean v. White & Haight, 5 Iowa 266, a change was refused because the motion was not filed until after a continuance had been granted. The holding in that case was based on the language in the case of Wright v. Stevens, 3 G. Greene 63, in which we said:
“If the facts upon which his application was based existed at the first term, and were known to him, his application should have been made at that term: If they had come to his knowledge since the first term, or did not exist at that time, that should have been stated as an excuse for not having previously made the application.”
These cases have been followed in many cases since. Finch v. Billings, 22 Iowa 228; McCracken v. Webb, 36 Iowa 551; Petty v. Hayden Bros., 115 Iowa 212; Hamill v. Schlitz Brewing Co., 165 Iowa 266.
The answer of defendants below, filed on September 18, 1920, which was prepared and sworn to on August 17, 1920,
Hamill v. Schlitz Brewing Co., supra, was decided after Subdivision 6 was added to Section 3505. If there was any intention that Code Section 3506 should not apply when the ground of the change was based on Subdivision 6, the legislature has not so said by enactment, and we have not so construed the same. There is no reason, that we see, why the provisions of Code Section 3506 do not apply to Subdivision 6 of that section.
In the instant case, the fraud relied upon was known by petitioners on the second day of the first term at which they were required to appear, as shown by their answer, signed and verified by them on that date, and later filed in the case. Two continuances having thereafter been had in the case, before the motion was filed for a change, we are of the opinion that the court had no discretion whatever in the matter, and that petitioners, defendants below, waived their right to a change. They had an absolute right to the change if application had been made in time, but the plain provisions of Section 3506 apply, and could not be ignored.
The proceedings of the district court must be and are affirmed. — Affirmed.