Fairburn v. Goldsmith

• Decision Date: 22 April 1882
• Citation: 12 N.W. 273,58 Iowa 339
• Parties: FAIRBURN v. GOLDSMITH ET AL
• Court: Iowa Supreme Court

12 N.W. 273

58 Iowa 339

FAIRBURN v. GOLDSMITH ET AL

Supreme Court of Iowa, Des Moines

April 22, 1882

Appeal from Sac Circuit Court.

ACTION upon a bond executed to the plaintiff by the defendants Charles D. Goldsmith and L. T. Swezey. The plaintiff purchased of Goldsmith a certain note and chattel mortgage executed by one Mellen. In the sale thereof by Goldsmith to plaintiff, Goldsmith claimed that the amount due thereon after allowing all payments, set-offs, and counter-claims was $ 135. The bond was given as security to the plaintiff that that amount was due, and also to protect him against the expenses of litigation. The language of the condition of the bond is material in the consideration of the case, and we set out the same, which is in these words: "Now if it shall hereafter, in any manner appear that at the date of this instrument there was not due on said note and mortgage, after allowing all payments, set-offs, and counter-claims, and any defense whatever that the said E. Mellen may have to said note, the sum of $ 135, or if the said Charles D. Goldsmith fails to make any deficiency of the amount good, that is agreed to be due, to-wit, the sum of $ 135, after it is ascertained that there is a deficiency in such sum due, then this obligation to be in force, otherwise void. And we agree, that in case of a failure to recover the full amount guaranteed to be due, to pay the expenses of litigation."

The plaintiff avers in his petition that Mellen denied all liability upon the note, and refused to pay any part thereof; that he brought an action against him upon the note, and gave these defendants notice thereof, and that judgment was rendered in favor of Mellen, and against the plaintiff for costs.

The defendants, Goldsmith and Swezey, admit the sale of the note and mortgage to plaintiff, and the execution of the bond, but they aver the amount guaranteed to be due, was due, and that the judgment in favor of Mellen in the action upon the note, was obtained by collusion between the plaintiff and Mellen, and with intent to defraud these defendants. There was a trial to a jury, and verdict and judgment were rendered for the defendants. The plaintiff appeals.

REVERSED.

Robinson & Milchrist, for appellant.

Charles D. Goldsmith, for appellees.

OPINION

ADAMS, J.

I.

The action was brought in the Circuit Court of Buena Vista county, and upon the motion of the defendants the place of trial was changed, against the plaintiff's objection, to the Circuit Court of Sac county. The ruling was excepted to, and is now assigned as error.

The objection urged by the plaintiff to the motion for a change of place of trial is, that it is not supported by a proper affidavit. The motion was made upon the ground of undue influence of the plaintiff's attorneys. The statute in such case requires an affidavit of three disinterested persons not related to the party making the motion, nearer than the fourth degree. Code, § 2590. The plaintiff insists that the meaning of the statute is, that it must appear that neither of the three persons making the affidavit as disinterested persons, is related nearer than the fourth degree to the person making the motion, and where the motion is made by more than one, that it should appear that neither of the affiants is related nearer than the fourth degree to either of the persons making the motion. The motion in this case was made by more than one person. The part of the affidavit in question, is in these words: "The last three named above persons are not related to the parties making the motion nearer than the fourth degree." The affidavit, it appears to us, is not sufficient. It would be true that the three are not related, if only one is not. So again, it would be true that they are not related to the parties, if they are related to only one. The statute evidently contemplates that it should appear that neither of the three affiants is related nearer than the fourth degree to either of the persons making the motion. We think that the plaintiff's objection to the motion should have been sustained.

II. The plaintiff filed an amendment to...