59 Iowa 76 | Iowa | 1882
I. The action wherein a new trial is sought was pending in the Circuit Court and upon being remanded by procedendo from this court, the defendant made an application for a change of venue, on the ground of the prejudice of the judge, which was allowed, and the action was sent to the District Court, plaintiff excepting thereto.
“The District or Circuit Court in which a judgment has been rendered, or by which, or by the judge of which, a final order has been made, shall have power after the term at which such judgment or order was made to vacate or modify such judgment or order: * * * * * * *.
“6. Eor the death of one of the parties before the judgment in the action * * * 1 * * *
It will be observed that the proceedings authorized under this statute are in the nature of a writ of error coram nobis, and are provided for the review of a case after final judgment in the very court wherein it was rendered. By the express terms of the statute quoted, jurisdiction of this proceeding is conferred upon the court wherein the judgment was rendered; all other courts by these terms are excluded. Ewpressio unius est exclusio alterius.
The proceeding is not in the nature of a new or independent action, but is supplementary and intended to correct errors committed in the trial of a cause and the rendition of the judgment. It is of the same character, as all proceedings for new trials, the correction of records, etc., wherein the court
It follows that the statute authorizing change of venue is not applicable to the supplementary proceeding before us in this case.
The Circuit Court is the forum in which the issues upon plaintiff’s -petition should have been tried. Plaintiff has the right to a trial of these issues there. That he may not be deprived of that right the cause must be remanded to that court. Bennett v. Carey, 57 Iowa, 221.
The judgment of the District Court is
Beversed.