J. W. Edgerly & Co. v. Stewart & Hunter, 86 Iowa 87

J. W. Edgerly & Co. v. Stewart & Hunter

86 Iowa 87 | Iowa | 1892

Given, J.

I. This court has held that an appeal cannot be taken from an order granting a change of *89venue. Allerton v. Eldridge, 56 Iowa, 710; Groves v. Richmond, 58 Iowa, 54. In the latter case it is said: “Asan appeal in such case is unauthorized, this court acquires no jurisdiction, and the cause remains in the court below.” It will be observed that the judgment dismissing the appellant’s cross petition and action was after he had in open court “elected to stand on his exceptions, and declined to file said papers in the said district court of Pottawattamie county.” The exceptions upon which he elected to stand were to the order granting the change, and fixing the amount to be paid to Hunter, with costs. A failure to file the papers in the court to which the change was granted, or to pay Hunter the amount ordered within the time required, would work a discontinuance of the action, under section 2589 of the Code. The appellant invited the judgment dismissing his action by his election and declination to file the papers. Having determined not to file the papers,the judgment dismissing his action is without prejudice, even if irregular, as a discontinuance would have followed his failure to file the papers in time.

We think the record before us shows an appeal irom the order granting the change of venue only, and, as no appeal lies from such an order, the case must be dismissed. In Allerton v. Eldridge, supra, the case was before this court, not only on an appeal from the order of the Jasper circuit court granting a change of venue, but also from a subsequent order of the Polk circuit court dissolving the attachments sued out in the action. The court entertained the last appeal. The order dissolving the attachment was not invited by any action of the appellees, and would not have followed as a legal consequence, as would the discontinuance of the appellant’s action. The dismissal of the attachments, if erroneous, was prejudicial error, but not so the judgment dismissing the appellant’s cross action. Dismissed.