Whitney v. Atlantic Southern Railway Co.

53 Iowa 651 | Iowa | 1880

Rothrock, I.

1. pbactice : voiiufispeolal proceed-i.ngs. The law provides that either party may appeal from the assessment of damages, and^ that the Circuit Court' upon the appeal being taken shall take jurisdicti'on thereof and try and dispose of the same . . , .. r. as m actions- by ordinary proceedings. The land owner shall be plaintiff, and the corporation defendant. Code, § 1251.

It is provided in § 2590 that “a change of the place of trial in any civil action may be had in any of the following cases,” etc.

“Sec. 2501. Remedies in civil cases in the courts in this State are divided into actions and special proceedings.

“ See. 2505. A civil action is a proceeding in a court of justice in which one party known as the plaintiff demands against another party known as the defendant the enforcement or protection of a private right, or the prevention or redress of a private wrong. * * * * . ”

“ Sec. 2520. The -provisions of this Code concerning the prosecution of a civil action apply to both kinds of proceedings, whether ordinary or equitable, unless the contrary appears, and shall be followed in special proceedings not otherwise regulated, so far as applicable.” .

Either party upon the trial of the appeal may demand a jury, because it is required that the appeal shall be tried and disposed of the same as in actions by ordinary proceedings. If there be the right of trial by jury it would seem to be within the spirit of the law, to say the least, to allow a change of venue, for the object of a change of venue is to obtain an impartial trial. But it is urged that a change of venue is limited to civil actions, and that this appeal is not a civil action within the definition contained in § 2505. We think it is of little consequence what the proceeding be denominated ; it must be either a civil action or a special proceeding. If it be the former the right to a change of venue is expressly given. If it be the latter, we think that by a proper construction of the above cited sections the right is clearly conferred. To demonstrate this proposition we think it is necessary to consider only the two sections, 125J and 2520. By the former it is provided that the appeal shall' be tried and disposed of as in actions by ordinary proceedings, and by the latter the provisions of the Code concerning the prosecution of a civil action shall be followed in special proceedings, not otherwise regulated, so far as applicable. This special proceeding is regulated, so far that it is required to be tried and disposed of as in actions by ordinary proceedings; That is, there is the right of trial by jury and every other right appertaining to the trial of a civil action by ordinary proceedings.' The right to a change of venue is surely apjfiicable, because it is the right of the party to obtain an impartial trial.

The argument that a change of venue is no part of the trial and disposition of a case, and that it is not included in the prosecution of a civil action, is, we think, putting too narrow a construction upon the sections of the Code under consideration. In our opinion these sections of the statute were properly construed in State v. Clarke, 46 Iowa, 155, and we think that case is decisive of the case at bar. In conclusion we may say that if we were to hold that a change of venue is not allowable in proceedings of this character, such a rule would be contrary to what we believe has been the well settled practice of the nisi prvus courts of this State for many years. The motion for change of venue should have been sustained.

Reversed.