Judge v. Kahl

38 N.W. 173, 74 Iowa 486, 1888 Iowa Sup. LEXIS 37

Opinion

Reed, J.

The statute provides that any citizen of the county may institute and maintain an action of this character in his own name. Chapter 66, Acts 21st Gen. Assem. sec. 1. In Applegate v. Winebrenner, 66 Iowa, 67, we held that the action could not be maintained by a person not a citizen or resident of the county where it was instituted. Under the language of the statute, the right, i. e., the right to institute the suit, is clearly dependent on the residence or citizenship of the party in the county; but we are of the 'opinion that when that right has attached, and the suit has been instituted, the right to prosecute it to judgment does not terminate by the removal of the party to another county. The language of the statute is that “ nothing in this section shall prevent any citizen of a county from instituting and maintaining in his own name an action,” etc. It may be said that two rights are conferred by this language, viz., the right to institute the suit in his own name, and the right to prosecute to judgment; and that both are dependent on the citizenship of the party in the county. But it is his citizenship when the suit is instituted that is referred to, and it is upon that fact that both rights depend. This is the fair import of the words made use of, and there is nothing in the nature of the case requiring them to be construed in any other than their ordinary sense.

Reversed.