193 Iowa 561 | Iowa | 1922
— I. On January 7, 1921, the First National Bank of Iowa Falls filed its petition in the district court of Hardin County, Iowa, in an action against one J.. Gr. Freese. The petition was in the usual form of a suit on a promissory note, and a copy of the note sued on was attached to the petition. By its terms, the note was made payable at Iowa Falls, Iowa.
On the 5th day of March, 1921, the said defendant, Freese,
At said term, and on the 6th day of September, 1921, the defendant filed a motion for leave to file an amended and sub-i stituted answer, which was granted. The defendant filed an amended and substituted answer, alleging, among other things, that the note sued upon was given in renewal of an original note of like amount, and alleging that the said original note was obtained from the defendant by fraud and by false and fraudulent representations, the character of which were specified and set out in said pleading.
The defendant also, at the time of filing the said amended and substituted answer, filed an application for a change of the place of trial of said action, making the necessary averments therefor under the provisions of Paragraph 6 of Section 3505 of the Code Supplement of 1913.
The plaintiff in said action filed a resistance to the appli- ' cation for leave to file the amended and substituted answer, and also moved to strike the said amended and substituted answer, and filed a resistance to the application for a change of the place of trial.
The court ordered that the place of trial of said causé be changed from Hardin County, Iowa, to the district court of Wright County, Iowa, upon the giving of bond, as required by statute. The plaintiff in said action instituted this proceeding in certiorari in this court, to review the action of the district court in granting said change of place of trial.
The case turns upon the construction to be placed upon Paragraph 6 of Section 3505 of the Code Supplement of 1913, in connection with Section 3506 of the Code. Paragraph 6 of Section 3505, Code Supplement, 1913, provides in part as follows:
*563 ‘ ‘ In ail action brought oil a written contract in the county where the contract by its express terms is to be performed, in which a defendant to said action, residing in a different county in the state, has filed a sworn answer alleging fraud in the inception of the contract constituting a complete defense thereto, such defendant, upon application and the filing of a sufficient bond, may have such action transferred to the district court of the county of his residence.”
Code Section 3506 is as follows:
“The application for a change of place of trial may be made either to the court or to the judge in vacation, and if made in term time shall not be awarded until the issues are made up, unless the objection is to the court, nor shall such application be allowed after a continuance, except for a cause not known to the affiant before or arising since such continuance, and after one change no party is entitled to another for any cause in existence when the first was obtained. ’ ’
These two sections must be construed together. We have quite recently held that, where a defendant properly brings himself within the provisions of Paragraph 6 of Section 3505, Code Supplement, 1913, the granting of a change of place of trial is not discretionary, but mandatory. State v. District Court of O’Brien Coimty, 189 Iowa 1167.
We have also recently held that Section 3506 applies where the application for a change of place of trial is' predicated upon the right granted under Paragraph 6 of Section 3505, Code Supplement, 1913. Bilbo v. District Court of Ringgold County, 192 Iowa 1246.
In the instant case, there can be no question that the amended and substituted answer filed by the defendant was sufficient to comply with the requirements of Paragraph 6 of Section 3505 of the Code Supplement of 1913; therefore, it was mandatory upon the district court to grant the application for a change of place of trial, unless, by virtue of’the provision of Section 3506, the defendant, at the time of applying for such change of place of trial, was not in a position to demand such change.
The first requisite is that the issues shall be made up before the application for a change of venue can be considered by the court. The court shall not grant the change until the issues have been finally settled, after all dilatory or preliminary pleas have been disposed of, and it is apparent from the pleadings what questions are for determination in the case.
It may well be said that the issues were made up in the first instance when the defendant filed his answer tendering a general denial in the case. Had defendant’s plea of fraud been presented at that time in the answer, and an application been made for a change, the court could properly have granted it, because it was not presented before the issues were made up. The fact that defendant subsequently filed an amendment or an amended and substituted answer did not “unmake” the issues. All that the statute requires in this regard is that a change of venue shall not be granted until after motions, demurrers, and preliminary pleas are disposed of, and a pleading is filed which tenders an issue for trial.
Undoubtedly, under our practice, either party could amend his pleadings after the change was granted, and in the court to which the cause was transferred for trial. All that the statute contemplates in this regard is that the application for a change shall not be made while preliminary pleas are pending, nor until, upon the face of the record, the issues have been made up.
In the instant ease, the petitioner is in no position to urge that the statute was not complied with in the particular under consideration. The issues were made up before the application for a change was filed. The change was not granted while preliminary pleas were pending. On the face'of the record, the issues had been settled. This is what the statute requires before a change can be considered by the court. This had been done.
II. A much more difficult question confronts us in inter
The statute recognizes that a continuance shall not bar a party from subsequently applying for a change of venue where the cause which is made the basis for such change was not known to the applicant therefor before the continuance was had, and also where the cause which is the basis for -the change has arisen since the continuance. The purpose of the statute is obvious. It is to prevent a party who, under the law, is entitled to a change of place of trial, from withholding his application therefor and permitting the ease to be continued in the court where it was originally brought.
In the instant case, if the defendant had tendered the issue of fraud in the inception of the note at the appearance term, but had filed no application for a change of venue until the third term thereafter, and after two continuances of the case, he could not then apply for such change. Bilbo v. District Court of Ringgold County, supra.
In the instant case, however, the defendant was in no position to ask for a change of venue until he filed his amended and substituted answer, which first tendered the issue of fraud in the inception of the note. There was no continuance thereafter. He moved promptly and expeditiously for the change, as soon as he was entitled to it on the record. This, however, is not saying that the defendant could intentionally and without lawful excuse withhold pleading the defense of fraud after he was advised of facts making the defense available, and permit a continuance of the ease. It is for the trial court to de
¥e fail to find from the record that the defense of fraud in the inception of the note was available to the defendant until after the continuances had occurred. The record tends to sustain the contrary.
It is not necessary that we place a construction upon the word “continuance,” as used in the statute under consideration in this ease. Under our statutes, all cases not disposed of are “continued” by adjournment of the term, as a matter of law. A party plaintiff may, under the statute, have a case “continued” for the purpose of bringing in parties defendant who have not been served with notice. A plaintiff may also, by motion, secure a continuance, without the consent and even over the objection of the defendant in the action. In the instant case,
We therefore reach the conclusion that the trial court did not act illegally in granting the application for a change of venue, and this proceeding in certiorari is, therefore, — Dismissed.