Sweet v. Wright

| Iowa | Dec 6, 1883

Adams, J.

I. The defendant sureties assign as error that the court erred in not granting a change of place of trial as 1. vENtrar. as to par0/ defendants. to them. Section 2594 of the Code provides that, “as to those who take no change, the cause shall proceed as if none had been taken.” The plaintiff cites this section as decisive of the question before us.

Under this section it must be held that it does not follow, from the mere fact that a change is granted to a portion of the defendants or plaintiffs, that a change must also be granted to the others who do not desire it, but that the cause must proceed as to them as if no change had been taken. If, in the case at bar, the defendant sureties had not applied for a change, the court would have been justified in assuming that they did not desire it, and would have been justified in retaining the case as to them, and probably, also, in proceeding to trial without waiting for a trial against the principals. Eut the defendant sureties did apply for a change. The motion purports to be made by all the defendants.

It is true, it was made solely on the ground of the prejudice of the judge against the principals, Wright & Spencer. But that, we think, is not material.

Whether, if Wright & Spencer had not joined in the motion, the court would have been justified in granting a change as to the sureties, no prejudice against them being shown, we do not determine. Such question is not before us. But, a change having been granted to the principals, and the defense, as it appears, made by the sureties, being identical with that of the principals, it appears to us that it was the sureties’ right to have a change as to them also, and have one trial as to all. A case, we think, should be kept together, and disposed of by one trial, unless some reason is 'shown to the contrary. The time and expense of courts, as well as of litigants, demand this. The only provision for trying the same issue in two courts seems to be that contained in the section above cited, and that, as we have seen, is not applicable to this case. We think that the change granted as to the principals should have been granted as to the sureties.

II. The goods in question were formerly owned by the execution defendant, J. B. Sweet, Jr. He had, prior to the 2 evidence • opinonof: attorney. mafle a biU of sale of them to his father, the plaintiff, and the issue tried was as to whether sa]e wag fraudulent. One Pillsbury, an attorney, who was employed to draw the bill of sale, was examined as a witness, and allowed to testify, against the objection of the defendants, that he regarded the transaction as an honest one. As to whether it was honest was the ultimate question for the jury; and evidence as to Pillsbury’s opinion about it was not, we think, admissible.

Several other questions are presented, but they will not, we think, arise upon another trial. Eor the errors pointed out the judgment must be

Reversed.