Scott v. Neises, 61 Iowa 62

Scott v. Neises

61 Iowa 62 | Iowa | 1883

Adams, J.

1. PRACTICE in supreme court: civil cause: no argument by appellant-appeal dismissed. — The appellant claims that the action is triable de novo. This the appellee denies. In support of his denial he points out wliat he claims are fatal defects in the abstract. We do not feel called upon to determine these questions. Neither party has argued the case upon the merits. Probably the appellant, being defendant, did not regard it as incumbent upon him to make any argument upon the merits', because the appellee being plaintiff, and having the right to make the opening argument, did not.. But we do not think that it is the right of parties to waive all argument in this way, and cast upon the court the burden of making a complete examination of the case unaided by argument. The abstract is a voluminous one, and, as it appears to us from a cursory examination, not easily intelligible. It would be impossible for the court to properly discharge its duties, if it can be required to determine upon their merits causes of this character submitted in this way. The right of the plaintiff, appellee, to open may doubtless be waived. But where the appellant fails to file an argument, it has been our custom in civil cases to regard that as a failure to prosecute the appeal, and we think that we must so regard it here, so far as the merits of the case are concerned.

2. question fownotcon-’ sidered. The appellant, however, presents one question which we are called upon to consider. He complains that the court erred in ordering a change of venue. The action was brought originally in the district court- of Marshall county. The judge, upon his motion, transferred it to the circuit court because he had been counsel in causes of like character, and involving the same issues.

But this, we think, was at most mere error, and reviewable only on an exception. It may be true, as claimed, that the *64defendant’s counsel were not present when the order was made, and could not except. Rut they could have made a motion to set aside the order, and, if overruled, they could have excepted, and made the exception thus taken the basis of an appeal.

In the condition of the record as it is, we think that the decree must be

Affirmed.