Chariton Finance Co. v. Wennerstrum

• Decision Date: 07 March 1939
• Docket Number: 44087.
• Parties: CHARITON FINANCE CO. v. WENNERSTRUM, Judge.
• Court: Iowa Supreme Court

284 N.W. 375

226 Iowa 464

CHARITON FINANCE CO. v. WENNERSTRUM, Judge.

No. 44087.

Supreme Court of Iowa.

March 7, 1939

Certiorari from District Court, Lucas County; Charles F. Wennerstrum Judge.

This is an original proceedings in certiorari to question the jurisdiction of Charles F. Wennerstrum, Judge, Second Judicial District of Iowa, in making a certain ruling hereinafter set forth. Opinion states the facts.

Writ annulled.

J. D Threlkeld, G. C. Stuart, and A. V. Hass, all of Chariton, for petitioner.

H. V Levis, of Chariton, and Hal W. Byers and McMartin, Herrick Sloan & Langdon, all of Des Moines, for respondent.

MITCHELL, Chief Justice.

Chariton Finance Company filed its petition at law in Lucas county alleging that the Farmers Mutual Hail Insurance Association had issued a policy of fire insurance covering a certain Chevrolet truck and that said truck had been destroyed by fire, and that there was attached to and made a part of the insurance policy a loss payable clause, providing for payment in case of loss to the Chariton Finance Company, and that it was entitled to recover the amount of $500, for which it prayed judgment. The insurance company appeared and filed a motion supported by affidavits for change of place of trial to Polk county, a resistance was filed, and the lower court entered an order sustaining the motion for a change of venue to the District Court of Polk county. The finance company filed a petition in this court for a writ of certiorari to review the order entered, alleging that Judge Wennerstrum acted illegally and without jurisdiction. The writ was granted by one of the Justices of this court.

Many questions are argued. We find it necessary to discuss but one.

Code, Section 11053, provides for a change of place of trial where the defendant makes a proper motion.

It is followed by Code, Section 11054, which is as follows: " Dismissal . If the sum so awarded and costs are not paid to the clerk by 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 dismissed."

Thus we find that the legislature has specifically provided for dismissal of cases, where a change of place of trial has been ordered, if the papers in the cases are not filed by the plaintiff in the court to which the change is ordered. With this in mind we turn to the record before us.

The order of change of place of trial was entered on the 27th day of March, 1937. The next term of court in Polk county following the date of the order sustaining the motion commenced on May 3, 1937. The petition for the Writ of Certiorari was not filed until June 5, 1937.

In the recent case of State ex rel. Havner v. Associated Packing Co., 216 Iowa 1053, 250 N.W. 130, 133, this court, confronted with the same question as we are here, said:

" The ruling of this court in the case of Hall v. Royce [56

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