155 Iowa 379 | Iowa | 1912
Lead Opinion
I. The petition alleged that the defendants had an office and agency in Cedar Rapids for the loaning of money; that the same was conducted by one Frank Flummel in their behalf; that the plaintiff borrowed $34 from such agency and executed his note therefor, together with an assignment of his wages; that he thereafter paid and overpaid such loan to the defendants through such agency; that, notwithstanding such payment, the defendant willfully and maliciously, and with intent to extort, presented such assignment of wages to the plaintiff’s employer, the Chicago, Rock Island & Pacific Railway Company; and that such demand resulted in the discharge of the plaintiff from employment. The defendant
Section 3500 is not confined in its application to actions upon contracts alone. Locke v. Chicago Chronicle Co., 107 Iowa, 390.
tinder the allegations of the petition in this case, the •cause of action sued on did grow out of and was connected with the business of the agency at Cedar Rapids. In so far as such allegations were disputed by affidavits in support of the motion for a change of venue, an issue of fact was presented. To this issue affidavits and counter affidavits were directed. The trial court was clearly justified in finding that the action grew out of, and was connected with, the business of that office.
Section 261 of the Code Supplement is as follows: “In all civil cases where any party defendant shall before any pleading is filed by him, file in said cause a motion for a change of venue to the district court, supported by ■affidavit showing that such party was not a resident of the city where such court is held at the time of the commence-ment of the action, the cause upon such motion shall be-transferred to the district court of the county.” This provision of the statute is mandatory and leaves no discretion to the superior court. We have heretofore so construed it. Woodring v. Rooney, 121 Iowa, 595; Iowa Land Co. v. Wilson, 145 Iowa, 381; Wiar v. Ry. Co., 151 Iowa, 121.
Dissenting Opinion
(dissenting).' — In my judgment wben tbe defendant moved for change of venue from tbe county, and upon tbe denial of that motion obtained time to plead, be waived his right to demand a transfer of tbe case to the district court.