36 Iowa 551 | Iowa | 1873
The record shows that the cause was tried in the circuit court to a jury in August, 1871. The jury failing to agree the cause was continued to the November term, when it was again continued and the application for a change of venue was made at the January term, 1872. The affidavit for the change complies with seetion 2803 of the Revision as amended by chapter 167 of the Laws of 1870, but was defective in not stating that the ground for the change of venue was unknown to the defendant before the continuance of the cause, as required by seetion 2801. See Finch v. Billings, 22 Iowa, 228. That section provides that the application for a change of venue shall not be allowed after a contrmuance except for a cause not ¡mown to the applicant before such continuance. It was, therefore, error to allow the change in this case. It is urged however that the appellant should have stood upon this ruling and appealed therefrom. The appellant excepted to the ruling at the time, and his appeal from the final judgment brings up the question of the correctness of this ruling. Jones v. The Chicago & N. W. Ry. Co., ante, 68.
II. On the trial plaintiff was offered as a witness to prove that he bought the hogs of his brother Abram, and did not put them in as Abram’s agent. This evidence was rejected on defendant’s objection, and this ruling is assigned as error.
There was error in the rejection of this evidence. The plaintiff sued in his own name; one branch of the defense was that he was not the real party in interest. Evidence tending to show that he was sole owner of the hogs was clearly admissi
This instruction is assigned as erroneous. If the court, by this instruction, intended to charge the jury that, if the contract was made by the plaintiff and his brother jointly for the sale and delivery of the hogs as their joint property, the plaintiff
The instruction being thus calculated to mislead the jury, was erroneous.
We find no other errors in the record.' For those pointed out the judgment will be reversed, and remanded to the circuit court where the first error occurred
Reversed.