Allerton v. Eldridge

• Decision Date: 21 October 1881
• Citation: 10 N.W. 252,56 Iowa 709
• Parties: ALLERTON v. ELDRIDGE.
• Court: Iowa Supreme Court

56 Iowa 709

10 N.W. 252

ALLERTON

v.ELDRIDGE.

Supreme Court of Iowa.

Filed October 21, 1881.

Appeal from Jasper circuit court. Also from Polk circuit court.

Action in equity. The plaintiff filed her petition in the circuit court of Jasper county, asking, among other things, for a specific attachment against certain property, and also for a general attachment. A writ was issued containing two mandates--one for a specific attachment and one for a general attachment. Afterwards the defendant filed an affidavit that he was about to file a motion to dissolve the specific attachment. He also filed a motion for a change of venue to the district court. The plaintiff objected to any change, and especially to a change to the district court, and filed an affidavit of prejudice of the district judge. The circuit court granted a change, and ordered the cause to be transferred to the circuit court of Polk county. The plaintiff gave notice of an appeal, and filed a supersedeas bond. The proper papers were filed by defendant in the circuit court of Polk county. A copy of the notice of appeal and supersedeas bond were filed in the same court by the plaintiff, and a motion was made by her for a postponement of all proceedings in the cause pending the appeal; which motion was overruled and the plaintiff excepted. The defendant then filed a motion to dissolve both attachments, which motion was sustained except as to a portion of the property held under the general attachment; to which ruling the plaintiff excepted. She appeals from both rulings excepted to.Ryan Bros., for appellants.

S. S. Patterson and Nourse & Kauffman, for appellee.

ADAMS, C. J.

1. The first question presented is as to whether the plaintiff had a right to appeal from the order granting a change of venue at the time she attempted to appeal. If she had, then her appeal, a supersedeas bond having been filed, should have had the effect to stay proceedings, and the circuit court of Polk county erred in not sustaining the plaintiff's motion to postpone. An appeal may be taken from “an order made affecting a substantial right in an action, where such order in effect determines the action, and prevents a judgment from which an appeal might be taken.” Code, § 3164, subd. 1. The plaintiff insists that an order granting a change of venue is of the kind above described. But sending an action to another court to be tried does not determine the action, nor does it prevent a judgment from which an appeal may be taken. In our opinion the statute cited does not give plaintiff the right of appeal which she claims. But the plaintiff cites to us subdivision 2 of the same section, in which it is provided that an appeal may be taken from “a final order made in a special proceeding, affecting a special right therein.” It is equally evident, to our mind, that the order granting a change of venue is not the kind described in this provision.

There are some other orders from which an appeal may be taken, but the plaintiff does not claim that the order in question is one of them, and it is sufficient for us to say that we think it is not. It follows, then, that, at the time of the action of the circuit court of Polk county, no appeal had been taken which the court was bound to respect, and that the court did not err in overruling the plaintiff's motion to grant a postponement of proceedings pending the appeal. Now, while it appears to us that the plaintiff had no right of appeal from the order granting the change of venue at the time she attempted to appeal therefrom, yet as a right of appeal has arisen from an order subsequently made, viz., the order dissolving the specific and general attachments, it appears to us that we may properly review any other error which the appellant claims was made in the case. Because the statute does not provide for an appeal from an order granting or refusing a change of venue, it does not follow that the action of the court in granting or refusing such change is not reviewable. The right to such review is expressly recognized in Jones v. C. & N. W. Ry. Co. 36 Iowa, 68; and Furguson v. Davis Co. 51 Iowa, 224.

An appeal after final judgment will bring up for review all the rulings in the case which have been properly excepted to; and we see no reason why an appeal properly taken before final judgment may not bring up for review all the rulings in the case theretofore made and properly excepted to. The reason for not allowing an appeal directly from each intermediate ruling not affecting a substantial right, as the admission or exclusion of evidence, etc., is that the allowance of such appeals would too greatly postpone the final disposition of the case. Richards v. Burden, 31 Iowa, 305. Subject to this consideration, it is evidently important that all errors should be corrected as early as possible. The statute does not provide expressly, nor, we think, by implication, that these lesser intermediate rulings shall not be reviewable until after final judgment. It merely fails to provide that the party claiming to be aggrieved by the rulings shall have a right of appeal by reason of the rulings alone, and in advance of a ruling affecting a substantial right. In our opinion, then, the case having been properly brought to us on appeal, the ruling upon the motion for a change of venue may be reviewed, as well as the ruling upon the motion to discharge the attachments.

The motion for a change of venue was based upon the ground of the prejudice of the circuit judge. The motion, it appears, was filed in vacation, and but a few days before the term of office of the presiding judge was to expire by limitation, when he was to be succeeded by another person, and no term of court was to intervene. The plaintiff insists that in such case the prejudice of the judge does not constitute a ground for a change of venue. While it might have been certain to the judge to whom the application was made that no trial could be had, yet it was not certain that motions might not be made which he would be called to rule upon at chambers. This consideration alone, we think, was sufficient to entitle the defendant to a change of venue. It is true that a change of venue is called, in the Code, a change of place of trial; but we cannot think that the design was to allow a judge to whom objection is made to retain a case for the disposition of all preliminary questions, before granting a change of venue, where the application had been made in the mode in which the statute requires. Indeed, where the objection is to the court, the statute expressly contemplates that a change shall be had before the issues are made up and before the case is ready for trial. It is not true, then, as the plaintiff contends, that a change can be had for no purpose other than the trial. We may say, further, that if we could see no reason whatever in the nature of things for a change in this case, we should hesitate, in view of the imperative language of the statute, to hold that a change should not be granted where the statute, providing for a change, had been...