| Iowa | Apr 9, 1912
One Woodle, as plaintiff, brought an action against the petitioner in the superior court of the city of Shenandoah, of which court respondent was judge, to recover a sum less than $100. Petitioner appeared to that action as defendant and, claiming to be a nonresident, filed a motion, supported by affidavit, to change the venue to the district court of Page county. After due .consideration, the respondent as judge made the following order upon the motion: “It is ordered by the court that this cause be transferred to the district court of Page county, Iowa, upon pay' ment of the costs only, which are caused by the granting of such change, and the payment of said costs are made precedent to the completion of said change.”
Petitioner refused to pay the costs, and demanded that the cause be at once and unconditionally transferred to the district court for trial. This demand respondent refused
It is conceded that petitioner, although a railway corporation, was and is a nonresident of the city of Shenandoah, and entitled to the benefit of the section quoted. Indeed, such has been our holding. See Wiar v. Wabash R. R., 151 Iowa, 121" court="Iowa" date_filed="1911-04-07" href="https://app.midpage.ai/document/wiar-v-wabash-railroad-7114464?utm_source=webapp" opinion_id="7114464">151 Iowa, 121. Petitioner contends that the order granting the change was illegal, erroneous, and void because of the provision that it should pay the costs of granting the change as a condition precedent to the completion thereof. Respondent contends that the order made by him requiring the' payment of costs as a condition precedent to the change of venue was
In Iowa Loan Co. v. Wilson, 145 Iowa, 381" court="Iowa" date_filed="1910-01-12" href="https://app.midpage.ai/document/iowa-loan-co-v-wilson-7113791?utm_source=webapp" opinion_id="7113791">145 Iowa, 381, we held that upon the filing of a proper motion in the superior court a nonresident defendant is entitled to an unconditional order changing the venue to the district court. We there said:
The ground of change is applicable to causes pending in the superior court only, and the requirement of transfer is unconditional and mandatory in form. As the application must be filed before any other pleading, and no fees for docketing may be taxed in the district court (section 3510, Code), no costs are rendered unless by the change. The original papers are to be transmitted to the district court, and the only costs possible would be those of the clerk of the superior court in making a transcript of the diminutive record and authenticated copies of the petition, and original notice with return thereon to be kept on file in his office. But, as seen, costs of change are not exacted in all cases in the district court. Where the transfer is made because of the judge being a party or interested, by agreement of parties, or for that a jury can not be obtained, the costs are never exacted as a condition of transferring the cause. The costs follow the case and are taxed upon final disposition. Such appears to have been the intention of the Legislature in the enactment of the amendment quoted. The superior court in its establishment is local, with procedure somewhat restricted, and the design was that nonresidents of the city of its locality be not required to submit to its jurisdiction, but, at their election, might have causes in which they are made parties defendant transferred to the district court. As said, this amendment is mandatory in form, and we are of opinion that, upon entry of the order that the cause be transferred to the district court, the superior court lost its jurisdiction of the parties and the subject-matter.
See, also, Woodring v. Rooney, 121 Iowa, 595" court="Iowa" date_filed="1903-10-29" href="https://app.midpage.ai/document/woodring-v-rooney-7110621?utm_source=webapp" opinion_id="7110621">121 Iowa, 595.
Eespondent insists that the Iowa Loan & Trust Company case was wrongly decided, and that the expressions we
The underlying reasons for these rulings have been (1) that upon the filing of a motion for a change the superior court has no authority or jurisdiction to do more than make an order for the change and take the necessary steps to perfect it, and (2) the defendant in the suit after an erroneous order must answer and go to trial, or have a judgment entered against him as by default, therefore his filing of an answer and going to trial have not been regarded as a waiver; the superior court being without jurisdiction so long as defendant refused to comply with the unlawful condition imposed. If this were not true, a defendant could not safeguard his right to challenge the illegal order save by refusing to plead and suffering default to go against him.
In the Ferguson case, supra, it. is said: “It is also urged that independent of the statute the defendant waived the objection (to the ruling on motion for change of venue) by going to trial. . . . The defendant had objected to the change, was overruled, and excepted. It could do nothing more, and clearly waived nothing by stipulating that the trial which must take place some time should be had on a named day. Defendant could not prevent the trial from taking place. In the motion for a new trial, the defendant
Here, as thére, defendant to the action at all times insisted that the Superior Court Avas Avithout jurisdiction, and after judgment moved to set the same aside and for a neAV trial because of the erroneous ruling on the motion for a change of venue, but this, too, Avas denied. By imposing the condition as to payment of costs, the respondent virtually denied the motion for a change of place of trial, and all of his acts thereafter were void and of no effect. Such was in substance the • holding in the early case of Cass v. State, 2 G. Greene, 353, and the rule there announced has been adhered to in all subsequent cases treating with the same question. See cases hitherto cited, and ■especially Foss v. Cobler, supra; Iowa Loan Co. v. Wilson, supra.
Had defendant in the original suit voluntarily filed answer and gone to trial without complaining of the order for the change, it might be held to have waived the error under the rules announced in Eckles v. Kinney, 4 Iowa, 539" court="Iowa" date_filed="1857-07-01" href="https://app.midpage.ai/document/eckles-v-kinney-7091272?utm_source=webapp" opinion_id="7091272">4 Iowa, 539; Rahn v. Greer, 37 Iowa, 627" court="Iowa" date_filed="1873-12-15" href="https://app.midpage.ai/document/rahn-v-greer-7095850?utm_source=webapp" opinion_id="7095850">37 Iowa, 627; Pumphrey v. Walker, 71 Iowa, 383" court="Iowa" date_filed="1887-03-15" href="https://app.midpage.ai/document/pumphrey-v-walker-7102646?utm_source=webapp" opinion_id="7102646">71 Iowa, 383; Paddelford v. Cook, 74 Iowa, 433" court="Iowa" date_filed="1888-05-14" href="https://app.midpage.ai/document/paddleford-v-cook-7103345?utm_source=webapp" opinion_id="7103345">74 Iowa, 433, and other like cases relied upon by respondent, but this it did not do. On the contrary, it objected to every step thereafter taken, and finally moved to set aside the judgment because of the refusal of the judge to grant an unconditional order for the change. In each of the cases last cited, the defendant waived the error by voluntarily going to trial; and in but two had there been a motion for a change of place of trial. In one of these cases it is said: “Although the defendant, after the order for the change of venue had been made, might well object to any order being made at a subsequent term to redocket the cause, yet, as it appears that he made no objection in the case, and appeared in court by his attorneys and went to trial, he can not now assign the ruling of the district court for error.”
After referring to the statutes and some previous decisions, the court proceeded as follows: “This last section provides that ordinary actions in justices’ courts may be commenced by notice or voluntary appearance. The effect of this is that a voluntary appearance confers jurisdiction upon the justice in an ordinary action. That appearance, as we have seen, if made by the defendant for any purpose connected with the cause, operates as full appearance.”
This last opinion is to be distinguished from the later decisions of the court for the reason that in the Rahn case, which was originally brought in justice’s court, the defendant refused to comply with a valid condition in the order for a change of venue, and was in no position to insist that the case was no longer before the justice who tried the case. As the petitioner in the instant case at all times denied the jurisdiction of the superior court and appeared under protest and filed answer simply to save a default, we think there was no waiver.
The respondent had no discretion in ruling on the motion for the change of venue. Proper showing having been made, he was bound to grant the order without qualification; anything in excess of that was without jurisdiction.
In each of the cases relied upon by respondent, the officer making the ruling had a discretion in the matter and was required to find the facts, and in such cases the ruling, although erroneous, was not in excess of jurisdiction or illegal. See, as amplifying this distinction, Iowa Loan Co. v. Dist. Court, 149 Iowa, 66" court="Iowa" date_filed="1910-10-26" href="https://app.midpage.ai/document/iowa-loan--trust-co-v-district-court-7114212?utm_source=webapp" opinion_id="7114212">149 Iowa, 66.
We are constrained to hold that certiorari is the proper remedy for such a case as the one at bar. It follows that the order of which complaint is made, and the judgment entered by the defendant judge, were each erroneous, and they must be and they are annulled, and the case is remanded, with directions to the court to enter an order granting the change of venue unconditionally. — Annulled and remanded.