36 Iowa 68 | Iowa | 1872
“ M. H. Estabrook, duly sworn, states : ‘ I am claim agent of the defendant for the Iowa division ‘of its road ; it is my business, as such agent, to investigate the facts and circumstances connected with all claims against defendant on said division, look up evidence on trial, etc., and there is no other officer or agent of defendant so well acquainted with the facts in said cause as I am; that the Hon. H. D. Chase, judge, etc., is so prejudiced against said defendant that it cannot obtain a fair trial of said cause before said judge,” etc.
“ Oscar Allen, A. L. Palmer and E. Gr. Sleight, being duly sworn, state that they are not related to defendant nearer than the fourth degree, nor otherwise in any way or manner inter
The motion for change of venue was overruled and defendant duly excepted. Afterward, the cause, not being reached for trial at that term of the court, was continued.
The cause was tried at the next term in Tune, 1872, which resulted in a verdict and judgment for plaintiff from which defendant appeals, and assigns among other errors, the overruling of his motion for a change of venue.
I. Section 2803 of the Revision of 1860, as amended by by section 13, chapter 167, Laws of 1870, provides as follows: “ A change of venue in any civil action may he had, m any of the following cases:
1st. * * *'
2d. * * *
3d. When either party files an affidavit verified by himself and three disinterested persons not related to the party, making the motion nearer than the fourth degree, stating that the inhabitants of the county, or the judge, is so prejudiced against him, or that the adverse party or his attorney has such an undue influence over the inhabitants of the county, that he cannot obtain a fair trial,” etc.
When a party applying for a change of venue under this statute.brings himself within its provisions it is generally erroneous to refuse the change. Welch v. Savery, 4 Iowa, 241; Eckles v. Kinney, id. 539; Berner v. Frazier, 8 id. 77; Miller v. Laraway, 31 id. 538. The discretion confided to the court by sections 4727, 4733 of the Revision in criminal cases, does' not exist in applications for change of venue in civil cases. Miller v. Laraway, supra. Such discretion is given in criminal cases, but it is not given in civil cases. The statute says that a cha/nge of venue may he had i/n any civil case when the party applying therefor files the affidavit prescribed therein. He is entitled to the change by complying with the requirements of the statute unless there be something
II. It is objected by appellee, however, that the motion for change of venue is defective, first, because not made by an officer of the corporation instead of by one who shows himself to be a claim agent.
The defendant, being an artificial person in law, could only make the affidavit by one of its officers or agents, and it is the policy of the statute that the affidavit should be made by an officer or agent sufficiently acquainted with the facts to make it conscientiously. In this case the affidavit shows that the agent making it was the only person, officer or agent, conversant with the facts; that it was his business to attend to and investigate all claims made against the company in this State, look up evidence on the trial, etc. He then, of all others, was most competent to make the affidavit, since he alone was sufficiently well acquainted with the facts to do it.
It would be difficult to conceive of what higher assurance the witnesses could have of a fact of this character than is expressed in this affidavit, for however positively they might swear to the fact that the judge was so prejudiced against the defendant that it could not obtain a fair trial before him, it would still be but the belief of the witnesses in the truth of the fact stated. Such fact is incapable of any higher assurance than a belief in its truth. In the case of Eckels v. Kinney, supra, an affidavit like the one in this case was held, sufficient under section 1706 of the Code of 1851, which was couched in the same language as our present statute on this subject.
Under the practice in many of the States, perhaps in most of them, appeals are not allowed from intermediate orders made in a cause, but the appeal lies only to the final judgment. By our statutes an appeal is allowed from, certain intermediate orders made in the progress of the cause, but there is no provision of our statute under which a failure to do so operates as a waiver of the error if an exception is taken to the ruling and an appeal be taken from the final judgment. See Revision, §§ 2631, 2632, 2633, 2634; Richards v. Burden, 31 Iowa, 305, and cases cited; Monticello Bank v. Smith, 25 id. 246; see, also, chap. 49, Laws of 1866.
Except in respect to such intermediate orders and decisions from which the statute gives an appeal, none other of the rulings of the court can be reviewed, though excepted to, but on appeal from the final judgment, and this applies as well to the rulings by a referee as by the court, and the time within which the appeal must be taken dates necessarily from the final judgment.-
The court having erred in refusing the change of venue, the other errors assigned need not be considered. The judgment will be reversed and the cause remanded, with directions to the district court to make an order changing the venue.
Reversed.