Archer v. Sellers

196 Iowa 946

• Court: Supreme Court of Iowa
• Decided: November 20, 1923
• Status: Published

Opinion

Per Curiam.

The Des Moines Mutual Insurance Association commenced an action to recover premiums upon a contract which provided for the payment thereof in Polk County. The .defendant in that action, who is the plaintiff in this proceeding, is a resident of Monona County. The answer to the petition of the insurance association set up fraud in the inception of the contract, as a partial defense thereto, defendant offering to confess judgment for a part of the commission. The fraud charged was the alleged misrepresentation of the company’s agent that the cost of the insurance would not and could not exceed $15 per thousand. The petition demanded judgment for a larger amount. In his verified answer, setting up the alleged false representations of the agent, the defendant asked for a change of venue, as permitted by Subdivision 6 of Section 3505, Supplement to the Code, 1913. The court overruled the motion, and entered judgment in favor of the plaintiff for the full amount claimed. To entitle defendant to a change of venue to the county of his residence, under the provisions of Subdivision 6, Section 3505, the fraud alleged must constitute a complete defense to plaintiff’s cause of action. Such is the specific language of the statute. The fraud alleged in this case purported only to constitute a defense in so far as the premiums exceeded $15 per thousand. The ruling of the court was in harmony with the statute, and the writ issued herein must be, and it is, dismissed. — Writ annulled and judgment affirmed.