C. & S. W. R. v. Heard, 44 Iowa 358

C. & S. W. R. v. Heard

44 Iowa 358 | Iowa | 1876

Day, J".

1. practice • absentwR?6'' nesses. I. Appellant assigns as error the action of the court in overruling the motion for a continuance. The court convened on the 15th day of February. On the 18th, defendant filed his motion for continuance, The adfx¿lavit for continuance is made by the attorney of defendant, and is based upon the ground that, since the commencement of the term of court, to-wit, on the 16th of February, plaintiff had filed the deposition of one M. T. Hurd, which is material and pertinent, and which defendant had had no opportunity to contradict. This application was properly overruled for several reasons. It was not made until the fourth day of the term, and no excuse is shown for the delay. Code, section 2752. It does not state what facts the absent witnesses will testify to; but states that affiant cannot set forth such facts. Although the deposition of Hurd was filed since the commencement of the term, it was taken before, and for aught that appears, months before it was filed. Defendant may have had the most ample opportunity to take testimony contradicting it.

2.--: venuf? °f II. Appellant assigns as error the overruling of the motion for a change of venue. This motion was made on the 20th of February, upon the ground of the prejudice of the judge. The affidavits in support of the motion omitted to state that the persons making them were disinterested in the result of the suit. The attorney of defendant filed his affidavit, stating that the parties making the affidavits as to the prejudice of the judge were not interested in the suit. The court held the affidavits insufficient, and overruled the motion. On the 22d day of February, the defendant asked leave to file amended affidavits, supplying the omission. The court refused the defendant permission to file the amended affidavits. The bill of exceptions shows the following state of facts: “The case was called for trial peremptorily before defendant filed his application for continuance; that said *361motion for a continuance was filed after said cause bad been called for trial, and tbe cause bad been passed on tbe peremptory call of tbe docket to allow tbe defendant to amend bis application for a continuance; that after, and on tbe next day after tbe amended application for a cóntinuance bad been overruled, tbe defendant filed-bis application for a change of place of trial; that said motion and application were overruled, and after such ruling, and after another cause had been tried, and just as tbe cause was again reached in its regular order, defendant asked leave to amend bis former application, which leave was refused.” Under the circumstances disclosed, we cannot say that tbe court erred in refusing permission to amend tbe application for change of venue. Defendant' did not file bis motion for continuance until the fourth day of tbe term, when the cause was reached for trial. Tbe cause was passed on tbe peremptory call of tbe docket to allow defendant to amend bis application for a continuance. This being overruled, the application for a change of venue was resorted to, although from aught that appears all tbe knowledge respecting the prejudice of tbe judge was possessed before tbe filing of the application for continuance, to tbe same extent as afterward. When tbe original application for change of venue was overruled, no permission was asked to amend tbe application, and no further action was taken until just as tbe cause was again reached for trial, when tbe defendant asked permission to file bis amended affidavits. We cannot say it was tbe duty of tbe court, under tbe circumstances disclosed, to permit it to be done. III. It is claimed that the pendency of tbe law action is a good plea in abatement of this action. We think not. The

3. abatement i pendonoy of another action. plaintiff in that action sought to recover damages for an alleged wrongful occupation of his premises by the railroad company.

Tbe plaintiff in this action seeks a specific performance of an agreement to convey tbe right of way over tbe premises in controversy. It is true, the due execution of tbe agreement to convey tbe right of way is involved in both actions. But the relief demanded is entirely distinct. That asked in one *362case is solely cognizable in a court of law, whilst that asked in the other case can be granted only by a court of equity. Under the issues embraced in the law action, no specific performance of the agreement could have been decreed, even if it had been found that the agreement in question was executed by Heard. It is true, if it had been ultimately determined in the law action that Heard did not'execute the agreement, that determination might have been pleaded in bar in the equity action. Put no such ultimate determination has been made. If this plaintiff had been permitted to make his equitable defense in the law action, the equitable issue would have been first tried. It would seem, therefore, that upon no legal principle can this equitable action abate because of, the pendency of the action at law. The cases of Rawson v. Guiberson, 6 Iowa, 508; and of Jennings v. Warnock, 37 Iowa, 278, are not, we think, in conflict with this view.

IY. The signature of defendant to the agreement for the conveyance of the right of way was written by one William G. Coop. The defendant denies that he gave Coop authority to attach his name to the agreement. The evidence upon this question is voluminous and conflicting. We have examined it with care. It impresses upon us the conviction that the defendant authorized Coop to sign his name, and that it was done pursuant to the authority conferred. A review of the testimony would subserve no useful purpose.

Affirmed.

Seevers, Ch. J., having been of counsel, took no part in the decision of this case.