Bixby v. Carskaddon

• Decision Date: 09 April 1884
• Citation: 63 Iowa 164,18 N.W. 875
• Parties: BIXBY v. CARSKADDON AND OTHERS.
• Court: Iowa Supreme Court

63 Iowa 164

18 N.W. 875

BIXBY

v.CARSKADDON AND OTHERS.

Supreme Court of Iowa.

Filed April 9, 1884.

Appeal from Linn circuit court.

Carskaddon, as sheriff, attached a stock of goods, wares, and merchandise, under certain writs of attachment against J. R. Billings. The plaintiff, claiming to be the owner of the goods, brought this action to recover of Carskaddon the value of the goods levied on by him. By consent the judgment creditors were substituted as defendants and they filed an answer in which it was stated that Billings was the real owner of the goods, and that a pretended sale thereof by him to the plaintiff was fraudulent, because it had been made to hinder and delay creditors. Trial by jury, verdict and judgment for the defendants, and plaintiff appeals.Stoneman, Rickel & Eastman, for appellant.

Hubbard, Clark & Danley, for appellees.

SEEVERS, J.

1. It is contended by counsel for the appellant that the court erred in overruling a motion for a change of the place of trial on the alleged ground that the defendants and their attorneys have such an undue influence over the inhabitants of the county that plaintiff cannot obtain a fair trial therein. This action was originally brought in 1879 in the superior court of Cedar Rapids, and, before the attaching creditors were substituted as defendants, it was stipulated by the then parties as follows: “It is agreed by the parties that the venue in this case be changed to the Linn county circuit court, and that the same stand for trial at the January term, 1880. It is further agreed that the attaching creditors be made partners defendant with the sheriff and that the present answers of the substituted defendants be an answer for all the defendants. It is further agreed that the cause shall not be transferred by either to the federal court, but shall be tried in the Linn circuit court.” This stipulation was filed on the second day of December 1879. Afterwards, on the second day of February, 1880, another stipulation was signed, in which the names of the creditors are stated, and the defendants were to have 60 days to answer, and, as we understand, the substitution was then made, or the attaching creditors were then made parties.

The affidavits and motion for a change of the place of trial were filed at the January term, 1882, and the defendants filed written objections thereto, as follows: First. “The plaintiff has stipulated to try the action in this court. Second. The affidavits are insufficient in this: they do not state that either defendants or their attorneys have undue influence, but that both together have such influence.”

As to the objection first above stated, the stipulation was, the action should be tried in the Linn circuit court; and it will be conceded that as between the then parties, the stipulation should have full force and effect. But clearly, we think, the persons who were afterwards substituted as defendants are not bound by the stipulation as to the place of trial. It is true they have not repudiated it, but that they could have done so there is no doubt. If the stipulation is not binding on them, it should not be so held as to the plaintiff. As between the parties to the action when the stipulation was made, it may be the action should be tried in Linn county. At least they were willing it should be so tried, but it does not follow that either of the parties would be willing or bound to try it in such county when other persons have been made parties who might influence public sentiment against them.

As to the second objection. The statute provides that if the “adverse party or his attorney has such undue influence over the inhabitants of the county that the party applying for the change cannot obtain a fair trial,” then there may be a change of the place of trial. The affidavit for the change states that “the defendants and their attorney” have such undue influence.

Counsel for the appellees contend that under the statute the party or his attorney must have such influence, and that the affidavit states that both combined have, and therefore it is insufficient. We do not think this is the proper construction of the affidavit. It states that both the defendants and their attorneys have such undue influence over the inhabitants of the county that the plaintiff cannot obtain a fair trial. The affidavit is broader than the statute, for it evidently means that the defendants have such undue influence, and so has their attorney; that is to say, that each has, and not that both combined have. The affidavit cannot fairly be construed as stating that by combining the influence of both the requisite undue influence can be said to exist.

The further objection is made that the affidavit fails to state the ground upon which the change was asked was not in existence when the place of trial was changed by stipulation from the superior court of Cedar Rapids. This objection was not made in writing in the court below, but it is said written objections were not required, and that the objection now under consideration may have been made orally in the circuit court. Possibly this is so. The statute provides that “after one change no party is entitled to another for any cause in existence when the first change was obtained.” Code, § 2591. We do not understand that either party had previously applied for and obtained a change in the place of trial, but that the parties mutually agreed to do so. This they may do whether any statutory cause exists or not, and we do not think the statute quoted applies to such a case.

2. The plaintiff took the deposition of one Shedd, and the defendants cross-examined the witness. The plaintiff did not introduce the deposition, and the...