191 Iowa 837 | Iowa | 1921
Thereafter, and before the date fixed for the appearance of said affiants for cross-examination, the Federal Cattle Loan Society, defendant in said original action, by its attorney, appeared before the respondent at Waukon, Allamakee County, Iowa, and presented a motion to set aside the said order pre
On the 27th day of January, 1921, the petition in this cause was. presented to one of the justices of this court, and an order was entered providing that a Avrit of certiorari should issue, and that proceedings in the district court of Winneshiek County, Iowa, be stayed, upon the filing of bond, as required by said order.
The question involved in this case is whether the respondent, as judge of the district court of Winneshiek County, IoAva, in vacatioai, acted illegally and exceeded his jurisdiction, in eai-tering the said order requiring the said affiants to appear for cross-examination. Avithout serving notice thereof on the plaintiff in said action or on said affiants, or without appearance on the part of the plaintiff or affiants. It is the contention of the plaintiff herein that the order requiring the affiants to appear for cross-examination Avas invalid and void, because notice of the application for such order Avas not served upon the defendant in said original action. Section 3831 of the Code provides:
*840 “A motion is a written application for an order, addressed to the court or to a judge in vacation, by any party to an action, or by anyone interested therein.”
Section 3834 of the Code provides:
“All motions filed in vacation shall be entered on such docket and served as herein required.” •
Code Section 3837 provides:
“The service shall be on each of the parties adverse to the motion, if more than one, or on an attorney of record of such party. ’ ’
Under these sections of the statute, the written application for an order requiring the affiants to appear for cross-examination was addressed to the respondent, as a judge in vacation. It was, therefore, a motion, within the language of Section 3831. This motion, under Section 3834, being filed in vacation, was required to be served, as required by the statute, on each of the parties adverse to the motion, or. on an attorney of record of such party.
Section 3833, Code, 1897, also provides that:
‘ ‘ Testimony to sustain or resist- a motion may be in the form of affidavits, or in such other form as the parties may agree on or the court or judge direct. If by affidavit, the person making the same may be required by the court or judge to appear and submit to a cross-examination. ’ ’
Such motion may be addressed “to a judge in vacation,” and the judge in vacation has the power to enter an order requiring an affiant to appear and submit to a cross-examination; but before such order can legally be entered by a judge in vacation on such a motion, service of the same must be had on the party adverse to the motion, or on an attorney of record of such party.
It therefore follows that, imder these provisions of the statute, the granting by the respondent of the order citing the affiants to appear for cross-examination having been made in vacation, on a motion or written application therefor, and notice of the same not having been served on the adverse party or his attorney, it was without jurisdiction, and the respondent, in entering such order under said conditions, was without authority so to do. As tending to support this conclusion, see
When the application for a change of venue, with the affidavits attached, was filed in the district court of Winneshiek County, the court, on its own motion, could have ordered the affiants to appear for cross-examination. Code Sections 3833 and 4678. But that is not the situation here. The order for the examination of the affiants Avas made by the judge in vacation, and on the written application of the plaintiff in the cause.
It therefore follows that the proceedings in this court in certiorari must be, and the same are, ordered — Dismissed.