Fairburn v. Goldsmith

12 N.W. 273, 58 Iowa 339

• Court: Supreme Court of Iowa
• Decided: April 22, 1882
• Status: Published

Opinion

Adams, J".

1. VENUE: motion for change of: affidavit. I. The action was brought in the Circuit Court of Buena Yista county, and upon the motion of the defendants the place of trial was changed, against the plaintiff’s objection, to the Circuit Court of gac The ruiing was excepted to,, and is now assigned as error.

The objection urged by the plaintiff to the motion for a change of place of trial is, that it is not supported by a proper affidavit. The motion was made upon the ground of undue influence of the plaintiff’s attorneys. The statute in such case requires an affidavit of three disinterested persons not related to the party making the motion, nearer than the fourth degree. Code, § 2590. The plaintiff insists that the meaning of the statute is, that it must appear that neither of the three persons making the affidavit as disinterested persons, is related nearer than the fourth degree to the person making the motion, and where the motion is made by more than one, that it should appear that neither of the affiants is related nearer than the fourth degree to either of the persons making the motion. The motion in this case was made by more than one person. The part of the affidavit in question, is in these words: “The last three named above persons are not related to the parties making the motion nearer than the fourth degree.” The affidavit, it appears to us, is not sufficient. It would be true that the three are not related, if only one is not. So again, it would be true that they are not related to the parties, if they are related to only one. ■ The statute evidently contemplates that it should appear that neither of the three affiants is related nearer than the fourth degree to either of the persons making the motion. We think that the plaintiff’s objection to. the'motion should have been sustained.

2. AMENDMENT: stricken from files: practice. II. The plaintiff filed an amendment to his petition, which, on motion of the defendant, was stricken out. The ruling is now assigned as error. The amendment filed was, in substance, that a certain criminal proceeding was instituted by the State of -Iowa against Mellen, in which Mellen was charged with the crime of having sold a portion of the property by him mortgaged to secure the note in question; that Mellen admitted the selling of the property, and defended upon the ground that there was nothing due upon the note and mortgage; that at the time the plaintiff purchased the note and mortgage, and took from the defendants the bond in suit, it was agreed between this plaintiff and the defendants that if Mellen should be discharged in the criminal action upon the. ground that there was nothing due upon the note and mortgage, the decision so made should, as between this plaintiff and. these- defendants, be a sufficient determination that nothing was in fact due; and that the decision so made should fix the liability of the defendants upon the bond; that the defendant, Goldsmith, was a witness in the criminal action, and actively assisted in the prosecution of the same; that the court discharged Mellen in the criminal action, and upon the ground that there was nothing due upon the note and mortgage.

We think that the court erred in striking the amendment from the files. It appears to us that without the amendment, evidence of the facts averred therein would not have been admissible. It will be seen that by such evidence the plaintiff would seek to conclude the defendants by an agreed test and without regard to the real facts of the case. The defendants could not be supposed to come prepared to meet such evidence unless some specific foundation had been laid for it in the petition. The amendment then could not be said to bo unnecessary, and was not properly stricken out upon the ground that it was unnecessary. We come next to inquire whether it was properly stricken out, because the facts stated were not such as the plaintiff was entitled to prove. This, we judge, from the motion made and sustained, was the real ground.

The defendants contend that the amendment averred nothing which could properly be proven, because the agreement is void for want of consideration, and, without the agreement, the defendants were not bound by the result of the criminal action, it being an action to which they were not parties.

But we think that the agreement was not void for want of consideration. It was certainly not if it was a part of the-bargain by which the note and mortgage were purchased by the plaintiff, and the fair inference from the amendment filed is that it was.

III. The plaintiff asked the court to instruct the jury to find for the plaintiff, and assess the amount of his recovery at $124.

3. FRAUD: failure to prove: verdict. Under the pleadings and evidence it appears to us that the instruction should have been given. The judgment against plaintiff in the action brought by him against Mellen was rendered after due notice to these defendants. It was a sufficient determination of the non-liability of Mellen, unless the judgment was obtained by fraud. The fraud Is alleged by the defendants in their answer to have consisted in the manner in which the trial was conducted, which is said to have been as follows; that the plaintiff’s attorney introduced the note and mortgage and rested; that the attorneys who claimed to be acting for the defendant, Mellen, then introduced him as a witness, who testified that the note and mortgage were given for the purpose of hindering and delaying creditors; that a cross-examination would have revealed the fact that they were given for future advances of money, and that such advances vere afterwards made; that other witnesses were introduced who testified to only such facts as were necessary to perpetrate the fraud; that a cross-examination would have brought out other facts which would have shown the note and mortgage to be valid, but that the cross-examination of all the defendmt’s witnessess was fraudulently omitted.

Now we fail to discover any evidence tending to show that a cross-examination of the witnesses would have revealed a different state of facts from that which was shown, or that a different state of facts could have been shown in any way. Tie defendants then wholly failed to prove the fraud alleged, ani the verdict should have been for the plaintiff.

ffany other errors are assigned, but under the views which wehave expressed, we do not think it probable that the questiois presented will arise upon another trial.

Reversed.