Eckles v. Kinney

Supreme Court of Iowa

Eckles v. Kinney

4 Iowa 539

CourtSupreme Court of Iowa

DecidedJuly 1, 1857

StatusPublished

Cited by4 cases

This text of 4 Iowa 539 (Eckles v. Kinney) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Eckles v. Kinney, 4 Iowa 539 (iowa 1857).

Pincite

Opinion

Stoqkton, J.

The first assignment for error, is, that the District Court took cognizance of the cause, after an order had been made, changing the venue to the county of Warren. This cognizance, it is claimed, was assumed by the District Court :

1st. By ordering the defendant to give bond to secure the plaintiff in the additional' costs to be incurred by the change of venue, after the order for the change of venue had been entered.

2d. By re-docketing the cause at a subsequent term, and trying it.

1. As to the first point, the court may, at the same term, reconsider the motion for a change of venue, and grant the same on such conditions only, as are allowed by law, and are in the discretion of the court. The costs occasioned by the change of venue, are to be paid by the applicant, and not taxed as part of the costs of the cause. The court may, [541]*541as a condition of allowing tbe order for tbe change of venue, order that such costs shall be paid into court. But we do not think that the court can, after a change of venue has' been allowed, order the applicant to give to the adverse party, a bond to secure him in the additional costs to be' incurred by such change of venue. There -is no law authorizing the court to make such requirement.

2. Although the defendant, after the order for the change of venue had been made, might well object to any order being made at a subsequent term to re-docket the cause; yet, as it appears that he made no objection in the case, and appeared in court by his attorneys, and went to trial, he cannot now assign the ruling of the District Court for error.

3. The second assignment of error, we think, is well taken. The affidavit states that, as defendant verily believes “tthe inhabitants of the county of Boone are so prejudiced against him, that he cannot expect an impartial trial in said county.” This is in the words of the statute. Code, § 1706. Section 1708 of the Code, which limits the party to one change of venue, does not apply in this case, because, if for no other reason, the party had not in reality had a change of venue.

Judgment reversed.

Free access — add to your briefcase to read the full text and ask questions with AI

Stoqkton, J.

The first assignment for error, is, that the District Court took cognizance of the cause, after an order had been made, changing the venue to the county of Warren. This cognizance, it is claimed, was assumed by the District Court :

1st. By ordering the defendant to give bond to secure the plaintiff in the additional' costs to be incurred by the change of venue, after the order for the change of venue had been entered.

2d. By re-docketing the cause at a subsequent term, and trying it.

1. As to the first point, the court may, at the same term, reconsider the motion for a change of venue, and grant the same on such conditions only, as are allowed by law, and are in the discretion of the court. The costs occasioned by the change of venue, are to be paid by the applicant, and not taxed as part of the costs of the cause. The court may, [541]*541as a condition of allowing tbe order for tbe change of venue, order that such costs shall be paid into court. But we do not think that the court can, after a change of venue has' been allowed, order the applicant to give to the adverse party, a bond to secure him in the additional costs to be' incurred by such change of venue. There -is no law authorizing the court to make such requirement.

2. Although the defendant, after the order for the change of venue had been made, might well object to any order being made at a subsequent term to re-docket the cause; yet, as it appears that he made no objection in the case, and appeared in court by his attorneys, and went to trial, he cannot now assign the ruling of the District Court for error.

3. The second assignment of error, we think, is well taken. The affidavit states that, as defendant verily believes “tthe inhabitants of the county of Boone are so prejudiced against him, that he cannot expect an impartial trial in said county.” This is in the words of the statute. Code, § 1706. Section 1708 of the Code, which limits the party to one change of venue, does not apply in this case, because, if for no other reason, the party had not in reality had a change of venue.

Judgment reversed.

Cite This Page — Counsel Stack

Bluebook (online)

4 Iowa 539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eckles-v-kinney-iowa-1857.

Opinion

Related

Cite This Page — Counsel Stack