Chicago, Burlington & Quincy Railroad Co. v. Castle

• Decision Date: 09 April 1912
• Citation: 135 N.W. 561,155 Iowa 124
• Parties: CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Petitioner, v. GEORGE H. CASTLE, Judge, Respondent
• Court: Iowa Supreme Court

135 N.W. 561

155 Iowa 124

CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Petitioner, v. GEORGE H. CASTLE, Judge, Respondent

Supreme Court of Iowa, Des Moines

April 9, 1912

Certiorari proceedings to review the action of the defendant judge in making an order for a change of venue to the district court of Page county, Iowa. Annulled and remanded.

Annulled and remanded.

W. D Eaton, E. C. Eicher and Wilson & Keenan, for petitioner.

Earl R Ferguson and C. R. Barnes, for respondent.

OPINION

DEEMER, J.

One Woodle, as plaintiff, brought an action against the petitioner in the superior court of the city of Shenandoah of which court respondent was judge, to recover a sum less than $ 100. Petitioner appeared to that action as defendant and, claiming to be a nonresident, filed a motion, supported by affidavit, to change the venue to the district court of Page county. After due consideration, the respondent as judge made the following order upon the motion: "It is ordered by the court that this cause be transferred to the district court of Page county, Iowa upon payment of the costs only, which are caused by the granting of such change, and the payment of said costs are made precedent to the completion of said change."

Petitioner refused to pay the costs, and demanded that the cause be at once and unconditionally transferred to the district court for trial. This demand respondent refused to grant except on payment of costs. Shortly thereafter the cause was reached for trial, and defendant therein still insisting that the cause be removed to the district court, and that the superior court was without jurisdiction, nevertheless filed an answer to the petition, and upon the issues so tendered the cause went to trial to a jury, resulting in a directed verdict for plaintiff therein in the sum of $ 30.78, upon which judgment was duly rendered. Defendant to that action then asked that the trial judge give it a certificate for appeal to this court, and this request was denied. Thereupon the defendant therein brought this proceeding to test the validity of the respondent's order.

Section 261 of the Code Supplement 1907 provides that changes of venue may be taken from the superior court in all civil actions to the district court of the same or another county in the same manner for like causes, and with the same effect as the venue is changed from the district court. This section also provides: "But in all civil cases where any party defendant shall, before any pleading is filed by him, file in said cause a motion for a change of venue to the district court of the county, supported by affidavit showing that such party defendant was not a resident of the city where such court is held, at the time of the commencement of the action, the cause, upon such motion, shall be transferred to the district court of the county."

It is conceded that petitioner, although a railway corporation, was and is a nonresident of the city of Shenandoah, and entitled to the benefit of the section quoted. Indeed, such has been our holding. See Wiar v. Wabash R. R., 151 Iowa 121, 130 N.W. 794. Petitioner contends that the order granting the change was illegal, erroneous, and void because of the provision that it should pay the costs of granting the change as a condition precedent to the completion thereof. Respondent contends that the order made by him requiring the payment of costs as a condition precedent to the change of venue was and is authorized by law; but that, if illegal, defendant to the action waived its right by going to trial before him, and that in any event certiorari will not lie.

In Iowa Loan Co. v. Wilson, 145 Iowa 381, 124 N.W. 201, we held that upon the filing of a proper motion in the superior court a nonresident defendant is entitled to an unconditional order changing the venue to the district court. We there said:

The ground of change is applicable to causes pending in the superior court only, and the requirement of transfer is unconditional and mandatory in form. As the application must be filed before any other pleading, and no fees for docketing may be taxed in the district court (section 3510, Code), no costs are rendered unless by the change. The original papers are to be transmitted to the district court, and the only costs possible would be those of the clerk of the superior court in making a transcript of the diminutive record and authenticated copies of the petition, and original notice with return thereon to be kept on file in his office. But, as seen, costs of change are not exacted in all cases in the district court. Where the transfer is made because of the judge being a party or interested, by agreement of parties, or for that a jury can not be obtained, the costs are never exacted as a condition of transferring the cause. The costs follow the case and are taxed upon final disposition. Such appears to have been the intention of the Legislature in the enactment of the amendment quoted. The superior court in its establishment is local, with procedure somewhat restricted, and the design was that nonresidents of the city of its locality be not required to submit to its jurisdiction, but, at their election, might have causes in which they are made parties defendant transferred to the district court. As said, this amendment is mandatory in form, and we are of opinion that, upon entry of the order that the cause be transferred to the district court, the superior court lost its jurisdiction of the parties and the subject-matter.

See, also, Woodring v. Rooney, 121 Iowa 595, 96 N.W. 1100.

Respondent insists that the Iowa Loan & Trust Company case was wrongly decided, and that the expressions we have quoted were, if applicable to the case, pure obiter. With this we do not agree. The language used in the opinion is clear, and the question was definitely presented for decision. No persuasive reason is given for overruling that case, and we are constrained to adhere to the rule there announced.

II. But it is said that petitioner waived the error by going to trial in the superior court. We have not heretofore held that one waives an erroneous ruling on such a motion by going to trial. Indeed, the contrary has been our holding in many cases. See Kell v. Lund, 99 Iowa 153, 68 N.W. 593; Ferguson v. Davis Co., 51 Iowa 220, 1 N.W. 505; Foss v. Cobler, 105 Iowa 728, 75 N.W. 516; Iowa Loan Co. v. Wilson, supra.

The underlying reasons for these rulings have been (1) that upon the filing of a motion for a change the superior court has no authority or jurisdiction to do more than make an order for the change and take the necessary steps to perfect it, and (2) the defendant in the suit after an erroneous order must answer and go to trial, or have a judgment entered against him as by default, therefore his filing of an answer and going to trial have not been regarded as a waiver; the superior court being without jurisdiction so long as defendant refused to comply with the unlawful condition imposed. If this were not true, a defendant could not safeguard his right to challenge the illegal order save by refusing to plead and suffering default to go against him.

In the Ferguson case, supra, it is said: "It is also urged that independent of the statute the defendant waived the objection (to the ruling on motion for change of venue) by going to trial. . . . The defendant had objected to the change, was overruled, and excepted. It could do nothing more, and clearly waived nothing by stipulating that the trial which must take...