187 Iowa 1037 | Iowa | 1919
This action is brought to recover damages for alleged malicious prosecution. The original notice recites that the action is brought for the March term, 1918, of the district court of Jones County, commencing on the 18th day of March, 1918, and that default will be entered against the defendants, and judgment rendered thereon, unless they appear before noon of the second day of that term.
The return shows that the notice came into the hands of the officer on the 26th day of February, 1918, and was personally served on the defendant R. M. Halweg, by reading the same to him, and by delivering to him personally a copy of the same in Black Hawk County, Iowa, on the 1st day of March, 1918. It further recites that the notice was personally served on the defendant the Hawkeye Oil Company, by reading the same to A. H. Caward, president of the company, and delivering to him personally a copy of the same in Black Hawk County, on the 1st of March, 1918. On the back of the notice, is endorsed the following:
“I hereby accept due, timely and legal service of the within notice, waived time of service, and acknowledge receipt of copy thereof on this 7th day of March, 1918.”
Signed by the defendant A. H. Caward.
On the 14th day of March, 1918, the defendants Ca-ward and Halweg appeared and filed a motion for a change
The question presented is: Did the court err in overruling defendants’ application fór change of place of trial? If this is answered in the affirmative, then all subsequent proceedings in the Jones County district court are not only unauthorized, but void.
This application was made under Section 3504 of the Code of 1897, which provides:
“If an action is brought in a wrong county, it may there be prosecuted to a termination, unless the defendant, before answer, demands a change of place of trial to the proper county, in which case the court shall order the same at the cost of the plaintiff, and may award the defendant a reasonable compensation for his trouble and expense in attending at the wrong county.”-
Defendants’ contention is that the action against them is a personal action, and must be brought in the county
“Personal actions, except as otherwise provided, must be brought in. a county in which some of the defendants actually reside, but if neither of them have a residence in the state, they may be sued in any county in which either of them may be found.”
It is the contention of the plaintiff, however, that the action was rightly brought in Jones County, under the provisions of Code Section 3500, which provides:
“When a corporation, company or individual has an office or agency in any county for the transaction of business, any actions growing out of or connected, with the business of that office or agency may be brought in the county where such office or agency is located.”
It is the thought of the plaintiff that the defendants had an office or agency in Jones County, and that the 'action herein sought to be enforced grew out of or is connected with the office or agency so established and located in Jones County.
It is conceded, or established beyond question, that the defendants Halweg and Caward are nonresidents of Jones County; that both are actual residents of Black Hawk County; that the defendant Oil Company, though organized under the laws of South Dakota, is an actual resident of Iowa, with its principal place of business in this state at Waterloo, in Black Hawk County; and that its president and secretary and general manager reside also at Waterloo, in Black Hawk County.
It appears that the information on which plaintiff was prosecuted was filed by the defendant R. M. Halweg, on the 9th day of June, 1917, before one J. C. Young, justice of the peace of Fairview Township, Jones County, and diarged the plaintiff with appropriating money belonging
Upon the filing of the information aforesaid, plaintiff was arrested, prosecuted, and thereafter legally discharged. He brings this action, alleging that the prosecution was wrongful and malicious.
Conceding, for the purposes of this case, that defendant Oil Company had an office or agency in Jones County for the transaction of business in that county, conceding that Ewing, the plaintiff, was its agent for the transaction of its business in that county, the question still presents itself: Does this action grow out of and is it connected with that office or agency? Did the wrong suffered by the plaintiff grow out of any act done by the defendant through the office or agency located in Jones County? Plaintiff was the agent of the defendant Oil Company for the sale of its products in Jones County and adjoining territory. He was engaged and employed by the Oil Company to go to the city of Monticello, Jones County, and there reside as the agent ■ of the defendant. His duties were to take orders in Jones and surrounding counties for the sale and delivery of defendant Oil Company’s products, and to forward these orders to the defendant company at its principal place of business at Waterloo. These orders, when received by the company, were honored at its principal place of business at Waterloo, and the goods called for by the orders were shipped directly to the parties to whom the plaintiff had made sales as the agent of the defendant. It is not claimed in this suit that anyone suffered any wrong traceable to 'any conduct of the defendant through this agency, or through plaintiff as agent of the defendant. It does not appear that the act out of which this controversy arose, and of which complaint is made, was done through any agency of the defendant in Jones County. The wrong, and
So it follows that, even though we concede that the defendant had an agency or place for the transaction of business in Jones County, and that the plaintiff was defendant’s agent for the transaction of business in that county, yet we must find that the record negatives the thought that the action involved in this controversy grew out of, or was connected with, that place or agency so established in Jones County. The wrong here complained of was not done by the defendant’s agent in charge of defendant’s agency or place of business in Jones County. If plaintiff’s contention is true, it is a wrong committed by the company itself, through its properly authorized agents, located in Black Hawk County, against the agent in charge of its office or place of business in Jones County. It therefore did not grow out of, nor was it connected with, that
Plaintiff calls attention to Locke v. Chicago Chronicle Co., 107 Iowa 390, as supporting his contention. There, the defendant was charged with publishing a libel through an agency in Polk County, to the injury of the plaintiff. The wrong complained of grew out of and was connected with the very act which the agent was required by its principal to do in Polk County. If was held that the action was properly triable in Polk County, on the theory, however, that defendant had an agency in Polk County for the transaction of the very business out of which the action arose. The court found affirmatively that the defendant charged with the wrong had an agency in the county in which the wrong was committed, and that the wrong was directly traceable to the act of the agent, done through the agency authorized and established by the defendant in the county in which suit was brought. The holding there was that it was sufficient if the principal have an office or agency in the county, and the action is predicated upon some wrong growing out of or connected with the business of the agency so created and established. In that case, it was apparent that the action was based upon a wrong directly traceable to and connected with and growing out of an agency, created and established by the defendant in Polk County. The wrong was the publication of the libel. The publication was through the instrumentality of the agency found to have been created and established in Polk County. The action, therefore, grew out of and was connected with the office or agency established by the defendant in Polk County.
“Any actions growing out of or connected with the business of that office or agency may be brought in the county where such office or agency is located.”
Two things are essential: (1) That the party sought to be charged in the action has an office or agency in the county, and (2) that the action grows out of or is connected with the office or agency; and these must concur, in order to lay the jurisdiction in the county other than the county of the actual residence of the defendant.
In passing, we have to say that the defendants attempted to make a special appearance in this case for the purpose of urging their motion for a change of place of trial. A special appearance is not authorized for that purpose. An appearance for that purpose confers jurisdiction.
Other questions are ’discussed; but, since what we have said disposes of the entire controversy, so far as this record is concerned, we/are not disposed to enter upon a discussion of these other questions.
The action of the court in refusing to grant a change of place of trial, as prayed, is reversed, and the cause remanded, with direction to sustain the motion for a change of venue, and to expunge from the record all proceedings had in the J ones County district court, subsequent to the filing of the motion for a change of place of trial. The cause is, therefore, reversed and remanded for proceedings in harmony with this opinion. — Reversed and remanded.