Donisthorpe v. Lutz

• Decision Date: 16 May 1912
• Citation: 155 Iowa 379,136 N.W. 233
• Parties: DONISTHORPE v. LUTZ ET AL.
• Court: Iowa Supreme Court

155 Iowa 379

136 N.W. 233

DONISTHORPE

v.LUTZ ET AL.

Supreme Court of Iowa.

May 16, 1912.

Appeal from Superior Court of Cedar Rapids; C. B. Robbins, Judge.

Action for damages brought in the Superior Court of Cedar Rapids against the defendants jointly. It is averred that they did willfully, and with intent to extort, present to his employer railway company a wage assignment order, and did thereby cause plaintiff to be discharged from the service. The defendants were both nonresidents of Linn county; Lutz being a nonresident of the state, and Bothell being a resident of Johnson county. Certain motions for change of venue were filed and thereafter overruled. Judgment was entered by default against both defendants for $900. A new trial was granted to the defendant Lutz, but was refused to the defendant Bothell, and he appeals. Reversed and remanded.

Weaver, J., dissenting.

Edwin B. Wilson, of Iowa City, for appellant.

Rickel & Dennis, of Cedar Rapids, for appellee.

EVANS, J.

1. The petition alleged that the defendants had an office and agency in Cedar Rapids for the loaning of money; that the same was conducted by one Frank Hummel in their behalf; that the plaintiff borrowed $34 from such agency and executed his note therefor, together with an assignment of his wages; that he thereafter paid and overpaid such loan to the defendants through such agency; that, notwithstanding such payment, the defendant willfully and maliciously, and with intent to extort, presented such assignment of wages to the plaintiff's employer, the Chicago, Rock Island & Pacific Railway Company; and that such demand resulted in the discharge of the plaintiff from employment. The defendant Bothell alone appeared at first and moved for a change of venue to Johnson county on the ground that he was an actual resident therein. This motion was overruled, and error is assigned upon such ruling.

The case was brought in Linn county on the theory that it was covered by section 3500 of the Code, which is as follows: “Where a corporation, company, or individual has an affice or agency in any county for the transaction of business, any actions growing out of or connected with the business of that office or agency may be brought in the county where such office or agency is located.” It is urged by appellant that this section applies only to actions on contract, and that it can have no application to such a tort as is charged in this case. The argument is that, if the tort was committed, it was so done independent of the agency and done by the defendants personally and not through their agency.

[1] Section 3500 is not confined in its application to actions upon contracts alone. Locke v. Chicago Chronicle Co., 107 Iowa, 390, 78 N. W. 49.

[2] Under the allegations of the petition in this case, the cause of action sued on did grow out of and was connected with the business of the agency at Cedar Rapids. In so far as such allegations were disputed by affidavits in support of the motion for a change of venue, an issue of fact was presented. To this issue affidavits and counter affidavits were directed. The trial court was clearly justified in finding that the action grew out of, and was connected with, the business of that office.

2. Thereafter both defendants filed motions for a change of venue from the superior court of Cedar Rapids to the district court of Linn county and supported the same by undisputed showing that neither of them was a resident of Cedar Rapids. Through some oversight the motion of defendant Lutz was not ruled upon. The motion of defendant Bothell was overruled. Thereupon a default was entered against both defendants for want of pleading and a verdict and judgment for $900. Thereafter the verdict was set aside as to the defendant Lutz, and his motion for a change of venue to the district court was sustained. The motion of the defendant Bothell for a new trial was overruled.

[3] Section 261 of the Code Supplement is as follows: “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, supported by affidavit showing that such party 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.” This provision of the statute is mandatory and leaves no discretion to the superior court. We have heretofore so construed it. Woodring v. Rooney, 121...