Gilman v. Donovan

12 N.W. 779, 59 Iowa 76

• Court: Supreme Court of Iowa
• Decided: June 15, 1882
• Status: Published

Opinion

Beck, J.

I. The action wherein a new trial is sought was pending in the Circuit Court and upon being remanded by procedendo from this court, the defendant made an application for a change of venue, on the ground of the prejudice of the judge, which was allowed, and the action was sent to the District Court, plaintiff excepting thereto.

As is shown by the opinion of this court rendered when the case was before here, the new trial was sought upon the ground that the plaintiff died before the judgment was rendered. Under our statutes the death of a party is sufficient ground for setting aside a judgment and allowing a new trial'. Code, § 3154, ¶ 6. The proceedings in such cases are by petition, setting out proper facts, and are to be commenced within one year after the judgment in the case sought to be set aside was rendered, and are prosecuted in the manner prescribed by the statute. Code, § § 3157 — 8.

i practice Éew^trian1 veiml.6 °f II. "We are to inquire whether the change of venue was lawfully allowed in this case. The proceeding by petition to : sel aside a judgment and for a new trial is authorized hy Code, section 3154. The part thereof material to our present inquiry is in the following language:

“The District or Circuit Court in which a judgment has been rendered, or by which, or by the judge of which, a final order has been made, shall have power after the term at which such judgment or order was made to vacate or modify such judgment or order: * * * * * * *.

“6. Eor the death of one of the parties before the judgment in the action * * * 1 * * *

It will be observed that the proceedings authorized under this statute are in the nature of a writ of error coram nobis, and are provided for the review of a case after final judgment in the very court wherein it was rendered. By the express terms of the statute quoted, jurisdiction of this proceeding is conferred upon the court wherein the judgment was rendered; all other courts by these terms are excluded. Ewpressio unius est exclusio alterius.

The proceeding is not in the nature of a new or independent action, but is supplementary and intended to correct errors committed in the trial of a cause and the rendition of the judgment. It is of the same character, as all proceedings for new trials, the correction of records, etc., wherein the court committing the errors corrects them. In this proceeding the law requires the very court rendering judgment.to review its decision; the case cannot therefore be transferred to another court for that purpose.

It follows that the statute authorizing change of venue is not applicable to the supplementary proceeding before us in this case.

The Circuit Court is the forum in which the issues upon plaintiff’s -petition should have been tried. Plaintiff has the right to a trial of these issues there. That he may not be deprived of that right the cause must be remanded to that court. Bennett v. Carey, 57 Iowa, 221.

2. practice in supreme fufchaligeof' queñt proceed-viewed? re" III. Defendant moved to strike from the files plaintiff’s abstract for the reason that the evidence and rulings of the court are not properly presented by bill of excep1 x J x d x ^ons or certificate. We need not examine the m°tion of plaintiff or the objection raised therein, There is no denial of the abstract so far as it shows the change of venue and plaintiff’s exception thereto. As for the error in changing the venue, the judgment of the court must be reversed; other rulings we cannot be required to consider. The language we use in Bennett v. Carey, supra, upon a point identical to the one now under consideration, may be here repeated: “All proceedings of the ease following and including the change of venue, were without authority of law. We cannot be required to review these unauthorized proceedings * * * * * * * *. It is therefore plain that we are authorized to review the case no farther than to pass upon the order making the change of venue.”

3.-: point not made by counsel. IY. It is proper to observe here that plaintiff’s counsel, while urging the point we have decided in his assignment of errors and argument does not base it upon the , , - . , » reasons we have presented in support o± our conclusion. While we axe not authorized to decide a case upon a point not made by counsel, we are not required to disregard a valid objection on tbe ground that we cannot concur in tbe reason assigned for its support by the counsel who urge it.

The judgment of the District Court is

Beversed.