Cooley v. Ensign-Bickford Co., ENSIGN-BICKFORD

Decision Date03 July 1973
Docket NumberENSIGN-BICKFORD,No. 55561,55561
Citation209 N.W.2d 100
PartiesRosemary COOLEY, Plaintiff, v.COMPANY, a Connecticut Corporation, and Quick Supply Company, an Iowa Corporation, Appellants, v. Everett MATTER, Defendant to Cross-Petition-Appellee. Jack COOLEY, Plaintiff v.COMPANY, a Connecticut Corporation and Quick Supply Company, an Iowa Corporation, Appellants, v. Everett MATTER, Defendant to Cross-Petition-Appellee.
CourtIowa Supreme Court

F. Richard Lyford, of Dickinson, Throckmorton, Parker, Mannheimer & Raife, Des Moines, for Quick Supply Co., appellant.

Richard Langdon, of Herrick, Langdon, Belin, & Harris, Des Moines and John W. Scott, of Spencer, Scott & Dwyer, Joplin, Mo., for Ensign-Bickford Co., appellant.

L. P. Van Werden, of Reynoldson, Brown & Van Werden, Osceola, for appellee.

Roy M. Irish, of Patterson, Lorentzen, Duffield, Timmons & Irish, Des Moines, for defendant to cross-petition and appellee.

Heard before MOORE, C.J., and RAWLINGS, LeGRAND, UHLENHOPP and McCORMICK, JJ.

MOORE, Chief Justice.

We granted defendants permission to appeal from the district court interlocutory order granting defendant to cross-petition a change of venue to the county of his residence. Only defendant Quick Supply Company has perfected this appeal. We reverse.

Plaintiffs, husband and wife, brought actions in Polk County. Quick's principal place of business alleging dynamite fuses purchased by plaintiff Jack Cooley, which subsequently caused him serious injury, were manufactured by defendant Ensign-Bickford Company and sold by Quick to the retailer Everett Mateer. Plaintiffs sued only Ensign and Quick. They alleged both defendants were negligent, the fuses were not fit for their particular purpose and strict liability. Plaintiffs' specifications of negligence included an assertion defendants failed to give proper instructions and warnings for the handling and use of the fuses.

After plaintiffs' actions had been pending for many months, defendants cross-petitioned against the retailer Mateer for contribution. Mateer's motion for change of venue of the cross-petitions to Clarke County, Mateer's place of residence, was sustained. That order gives rise to the appeal now before us.

The question presented is whether venue of the cross-petition is the county of the main action or the county of cross-petition defendant's residence.

Rule 24(a), Rules of Civil Procedure provides:

'(a) Generally. Any number of defendants may be joined in one action which asserts against them, jointly, severally or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences, when any question of law or fact common to all of them is presented or involved.'

Code section 616.17 provides:

'Personal actions, except as otherwise provided, must be brought in a county in which some of the defendants actually reside, but if neither of them have a residence in the state, they may be sued in any county in which either of them may be found.'

Thus it is clear had Mateer been made a defendant to the main action, as he could have been, he would not have been entitled to a venue change to his county of residence. As we will point out infra, the fact he was made defendant to cross-petition affords him no right to a venue change.

'The general rule is that when the determination of a matter is incident to a principal action, the court having jurisdiction of the principal action may determine the ancillary or incidental proceedings, notwithstanding the venue of an action as to such matter would under other circumstances be in another county.' 56 Am.Jur., Venue, § 25, p. 27. See also 92 C.J.S. Venue § 61; Annot., 100 A.L.R.2d 693, 700, 701.

As pertinent, rule 33(b) R.C.P. provies: 'When a defendant to a petition, cross-petition or counterclaim will, if held liable thereon, thereby be entitled to a right of action against one not already a party, he may move to have such party brought in, to the end that the rights of all concerned may be determined in one action. * * *.'

We have not heretofore been asked to interpret this rule as it bears on the venue question here raised. However, statutes of substantially the same provisions in force prior to the adoption of the rule have been before this court. In Mahaska Bank v. Crist, 87 Iowa 415, 423, 54 N.W. 450, 453, we say:

'* * *. The statute contemplates a trial of the issues joined on the cross petition in the court in which the original action is determined. It provides a means for adjudicating in a single action different rights of the defendants and others which are affected by the subjectmatter of the litigation which the plaintiff had instituted. The filing of a cross petition and the proceedings thereunder do not constitute a 'separate action' within the meaning of the statute, and to award a party a separate trial in the court of another county, on the ground of his residence therein, would be contrary to its spirit and intent. * * *.'

The above quote is set out and its reasoning applied in Brown v. Holden, 120 Iowa 191, 194, 94 N.W. 482, 483 and Ryan v. Amodeo, 216 Iowa 752, 755, 249 N.W. 656, 657. See also Angell v....

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8 cases
  • Rush v. Sioux City
    • United States
    • Iowa Supreme Court
    • 17 Marzo 1976
    ...effect upon the existing controversy. * * *.' The issues between them had become 'academic or nonexistent.' See Cooley v. Ensign-Bickford Company, 209 N.W.2d 100, 102 (Iowa 1973). It is the court's conclusion trial courts should have the power to Sua sponte dismiss actions. Use of this powe......
  • Buchhop v. General Growth Properties and General Growth Management Corp.
    • United States
    • Iowa Supreme Court
    • 12 Noviembre 1975
    ...the controversy between General Growth and Cheskin is still extant. We overrule the motion to dismiss. See Cooley v. Ensign-Bickford Company, 209 N.W.2d 100, 102 (Iowa 1973). II. In resolving the substantive issue, we first isolate and remove from controlling consideration § 617.3, The Code......
  • Bacher v. District Court, In and For Gunnison County
    • United States
    • Colorado Supreme Court
    • 7 Octubre 1974
    ...in another county. Cf. West View Corp. v. Thunderbolt Yacht Basin, Inc., 208 Ga. 93, 65 S.E.2d 167, 25 A.L.R.2d 878; Cooley v. Ensign-Bickford Co., Iowa, 209 N.W.2d 100; White v. Harbeson, 169 Ky. 224, 183 S.W. 475, L.R.A.1916D 1129; McCall v. Bowen, 91 Neb. 241, 135 N.W. 1014, 40 L.R.A.,N.......
  • Ronnfeldt v. Shelby Cnty. Chris A. Myrtue Mem'l Hosp.
    • United States
    • Iowa Supreme Court
    • 6 Enero 2023
    ...presents a justiciable controversy because the issues involved have become academic or nonexistent," (quoting Cooley v. Ensign–Bickford Co. , 209 N.W.2d 100, 102 (Iowa 1973) ), and dismissing the appeal when the plaintiff filed a voluntary dismissal after the appeal was perfected). In short......
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