78 Iowa 115 | Iowa | 1889
I. Appellant’s abstract presents two assignments of error; either of which, if sustained, would reverse the judgment: (1) The action of the court in refusing a change of venue; (2) the sustaining of the demurrer to the petition.
The argument of counsel proceeds upon the theory that as no counter-affidavits were filed, and the affiants were not brought into court for examination, there arose no controversy, and there was nothing for the court to decide.
Prior to 1884 there was no provision for counter-affidavits in such cases, and the court had no discretion. If the affidavits were filed in form, the change must be granted. It is a matter of public history in the state that the law, as it then existed, was much abused, and the correction of this evil was one of the reasons inducing the change. The remedy is by investing the court with a discretion, requiring him to be first “fully advised,” and then to decide “ according to the very right and merits of the matter,” and we do not think the exercise of this discretion is any less a duty with the court when there is no counter-showing than when there is. In any case where the change is sought upon evidence, it is its duty to weigh it, and in thé exercise of a sound discretion, as expresssed in the law, decide the question. Experience discloses many instances in which a want of merit is manifest upon the face of an ex parte showing. The language as to the filing of the counter-affidavits is permissive; but there is nothing in the language to indicate that without the counter-affidavits the former are to be taken as true.
It is next urged that the refusal to grant the change, under the showing made, was an abuse of discretion. This leads to an examination oi: the evidence. A reference to the affidavit of the plaintiff will show that it goes further than to state a conclusion of prejudice. It
The other affidavit is signed by twenty residents of Louisa county where the plaintiff; resides. It is an affidavit of their belief of the facts therein stated, and that statement is a mere-conclusion without facts showing upon what it is based. The affidavit in this form is competent under the statute; but, while competent as proof, its value as such depends largely upon its recitals. Under a statute requiring a court to decide whether a change shall be granted according to the “ very right and merits of the matter,” what was the duty of the court in this case ? If it knew these statements to be untrue, must it cast aside its own knowledge and judgment, and grant the change proforma, or should it be governed by its convictions as to the right? Not designing by construction to invest the court with an arbitrary or oppressive power, we think, under the broad provisions of the statute, the court should act upon the facts as they appeared, considering its own knowledge in the premises. Any other holding would rob the statute of one of the purposes it was designed to subserve. The refusal of the court to grant the change we understand to be a denial of the charges of misconduct as stated in the affidavit; for we must assume that no court, conceding the truth of such statements, would entertain a cause for trial. If we were to adopt
As touching the question of when a cause of action arises, we are referred to the case Steel v. Bryant, 49 Iowa, 116. It was an action against a clerk for taking an insufficient stay bond on a judgment. It was held that the cause of action did not accrue as against the clerk until the expiration of the stay bond, — one year, —and the holding could-not well be questioned, as the bond stayed the judgment for that time, and damage could only arise upon non-payment. If payment was made, no injury could result from the taking of the insufficient bond. The same rule and reasoning apply to Moore v. McKinley, 60 Iowa, 367. In Goodnow v. Stryker, 62 Iowa, 221, and other like cases therein referred to, a very different question arises. In those cases the title to lands was in dispute, and was settled by litigation. A party who supposed he owned the land paid the taxes. The title being adjudged in another, it was held that he could recover the taxes paid, and that his right of action therefor depended upon a contingency, i. e., who was the owner; and that
We think the holding of the district court was right, and its judgment is Aeeikmed.