Hall v. Royce

9 N.W. 295, 56 Iowa 359

• Court: Supreme Court of Iowa
• Decided: June 15, 1881
• Status: Published

Opinion

Rothkook, J.

i. mACTiaB: ii?wronrgUSh1i court * fer oil The order for a change of the place of trial was made under section ,2589 of the Code, which provides that “if the sum so awarded (the amount allowed the defendant for attending at the wrong county) ^ ^ ^ j and costs are not paid to the clerk at a time to be fixed by the court, or if the papers in such case are not filed by the plaintiff in the court to which the change is ordered ten days before the first day of the next term thereof, or, if ten days do not intervene between the making of said order and the first day of the next term of said court, ten days preceding the first day of the next succeeding term thereof, in either event the action shall be deemed to be discontinued.”

When the order for change of place of trial was made, an appeal was taken to this court by the plaintiff, and the ruling of the Circuit Court- was affirmed June 18, 1880. 54 Iowa, 136. There is some controversy between counsel for the respective parties as to whether a supersedeas bond was filed pending that appeal, and an order made staying proceedings. The appellee contends that -such bond was filed, and the proceedings being thereby stayed, the transfer of the case could not be effected until the disposition of the appeal in this court. We do not find it necessary to determine this question, in the view we take of the case. If it should be conceded that the appeal suspended proceedings in the court below, this would not excuse the plaintiff for delay after the ap■peal was disposed of. The plaintiff served a notice in August, 1880, that he would complete the transfer, and that the cause would be ready for hearing at the November term, 1880, and on the 21st day of October he filed copies of the papers in the case in the office of the clerk of the Butler Circuit Court, and filed a copy-of the record of said cause in that court. The statute requires that the papers — the originals, not copies,' shall be filed, and for failure to do this the cause shall be deemed discontinued. One of the grounds of the motion was for this cause. This omission was not cured by the defendant’s appearance, and moving to strike the cause. No action was pending, because it had been discontinued by operation of law. Section 2600 of the Code provides that if the petition be not filed by the date fixed in the original notice, “the action will be deemed discontinued.” In Cibula v. Pitts Manf. Co., 48 Iowa, 528, we held that in such case the appearance of the defendant for the purjjose of moving a discontinuance of the action is not a waiver of the defect resulting from the failure to file the petition in time. The language of th,e section of the statute under consideration in this case is almost identical, in so far as the consequences resulting from a failure to comply with its provisions are involved, with .the language in section 2600, and Ave think the case cited involves, in principle, the same question presented in this record.

In our opinion, the motion to strike the case from the calendar should have been sustained.

Beversed.