Dean v. White & Haight

5 Iowa 266 | Iowa | 1857

Stockton, J.

The first error assigned, is to the overruling of defendants’ motions for a change of venue. These motions were based upon two affidavits, the one alleging prejudice, on the part of the inhabitants of the county, against the defendants; and the other, stating that the defendants, being non-residents, had an agent in the county of Keokuk, and claiming that the action should have been commenced in that county. We do not think the court erred in overruling these motions. One objection to them is, that the cause had been continued one term — and perhaps two — and no reason is given for the delay in making the application. Wright v. Stevens, 3 G. Greene, 63 Another objection is, that, whilst both the affidavits are made by one of the counsel, neither contains any showing or reason, why the party does not make it— not even stating that he is not in attendance- — and neither showing the counsel’s means of knowledge. Where such affidavits are made by counsel, they should at least give a reason why they were not made by the principal, and the means which the attorney has of knowing the facts. Widener v. Hunt, 4 Iowa, 355. It is suggested by counsel, that this practice is contrary to a rule of the court, but no such rule is brought to our knowledge.

Again, one of the affidavits is based upon the alleged fact, that the defendants had an agent resident in another county. From this, the party assumes that the action should have been commenced in that county, and that, therefore, the venue should be changed to the same. The existence of an agent of a non-resident individual party, forms no legal necessity, for bringing an action in the county where the agent resides. We construe section 1705 of the Code, as permissive, and not mandatory. To compel a plaintiff, at his peril, to find such an agent, and to commence his action by service on him, would be subjecting him to great doubts and difficulties. The statute was intended to alleviate the difficulty of getting service on non-residents,, and not to increase them. The plaintiff is at liberty to take the usual and general course, for bringing the defendant into court. .

The second error assigned is, in overruling the demurrer to the petition. This demurrer alleges two grounds; first, that the plaintiff had not annexed to his petition, a copy of the contract referred to ; second, that the damages stated, are consequential, remote and speculative.' As to the first of these causes, the answer is, that the petition does not set up a written contract, but declares as upon a verbal one. The plaintiff has annexed an account, or statement, of the damages claimed, which is all he could, be required to do. The objection made to the matter of the damages alleged, is without foundation. The damages are said to consist in the loss of money, and labor expended, and. which loss was occasioned by the failure of the defendants to perform their contract. These are simply unliquidated damages, but still legitimate and ascertainable.

The third, and last assignment is, that the court erred in rendering judgment against the appellants, who were the defendants. The only case in which this, so general an assignment, could be available, would be where the cause had been placed in a position to enable this court to review the finding and decision of the court, on the facts as well as the law, which would be in a case in which the corn’t below had rendered its decision in writing, under section 1793 of the code, stating the facts found, and the conclusions of law thereon; or in a case tried by the court, when the evidence is brought up by a bill of exceptions, assuming for the present, that this latter practice is allowable, which, however, has not been determined. But in the present case, there is no such finding of the court which tried it, nor is- there any evidence re¡3orted, upon which we are requested to revise the verdict of the District Court.

Judgment affirmed.