Faivre v. Manderschied

• Decision Date: 12 April 1902
• Citation: 117 Iowa 724,90 N.W. 76
• Parties: FAIVRE v. MANDERSCHIED ET AL.
• Court: Iowa Supreme Court

117 Iowa 724

90 N.W. 76

FAIVRE

v.MANDERSCHIED ET AL.

Supreme Court of Iowa.

April 12, 1902.

Appeal from district court, Monona county; F. R. Gaynor, Judge.

Action at law to recover damages on account of alleged sales of intoxicating liquors to plaintiff's husband. There was a verdict and judgment for plaintiff, and defendants appeal. Affirmed.Bevington & Kennedy, Sullivan & Griffin, and Wilbur Owen, for appellants.

A. & J. Van Wagenan, for appellee.

WEAVER, J.

The plaintiff alleges that she is without property or means of support other than the labor and earnings of her husband, who is a tailor by trade, residing in Sioux City, Iowa; that the defendants, Manderschied and Aresdorf, each maintains a liquor saloon in said city; that on the 6th day of February, 1899, each of the defendants sold and gave to her husband intoxicating liquors, causing him to become intoxicated; that while so intoxicated, and by reason thereof, the defendant, in attempting to reach his home, became lost, and was so badly frozen that his hands and a part of his feet had to suffer amputation; that by reason of such injury he is wholly disabled, and has no means of earning a livelihood for himself or family; and she demands damages in the sum of $10,000. The defendants severally deny the allegations of the petition. This action was begun in the district court of Woodbury county, and two successive trials in that court resulted in a disagreement of the jury. After the second trial, plaintiff filed a motion for a change of venue, alleging as grounds thereof that the prejudice of the people of Woodbury county against prosecutions of that kind was such, and the influence of the defendants and their attorneys was so great, that she could not obtain a fair trial in said county. Like reasons were also assigned against Plymouth county. This application was sustained by several affidavits in due form, and defendants' resistance thereto was supported by a large number of counter affidavits. The motion was sustained by the court April 19, 1900, and the cause ordered sent to the district court of Monona county for trial. On the 20th day of April, 1900, the clerk of the district court of Woodbury county transmitted to the clerk of the district court of Monona county the pleadings in the case, and a transcript of what was certified to be a true and complete copy or transcript of all the orders of the court in said cause; and on the 24th day of April, 1900, said clerk transmitted an amended transcript, certifying to it as containing the motion for change of venue, and objections made thereto, and the affidavits filed in support and resistance. These papers were duly received by the clerk of Monona county, but were not marked “Filed” by him until August 21, 1900. Upon the cause being brought to trial in Monona county, the defendants objected to the jurisdiction of the court on the ground that the transcript from the clerk of Woodbury county was not complete and not properly certified; that a part of the transcript was not made or transmitted until April 24, 1900; that the court, in ordering the change of venue, failed to designate what costs should be paid by the applicant for the change, or make any order in regard to the costs; and that the costs were not in fact paid. These objections being overruled, the trial proceeded, resulting in a verdict and judgment for the plaintiff for $6,000. Only a part of the errors assigned by appellants have been argued in this court, and to those only will we refer in disposing of the appeal.

1. Appellants' first contention is that the district court erred in ordering the change of venue to Monona county. The granting or refusing of an application for change of venue is a matter very largely within the discretion of the court to which the motion is addressed, and when a showing is made which is regular in form, and prima facie sufficient, the ruling of the trial court sustaining it is rarely, if ever, reversed upon appeal. It is impossible for this court, even upon the most complete record, to see the situation as clearly as it appeared to the trial court. That court had witnessed two successive trials to a jury without a verdict, and was in position to say, from its knowledge and observation, how much weight should be given to the allegations of the motion, and of the testimony in reference thereto upon either side. Garret v. Bicklin, 78 Iowa, 119, 42 N. W. 621. Such a question is not to be disposed of by a mere comparative count of affidavits. It is unnecessary for us to go into the details which counsel dwell upon in argument. The district court acted within its discretion, and the assignment of error thereon cannot be sustained.

2. It is further urged with much earnestness that appellants' objections to the jurisdiction of the district court of Monona county should have been sustained. The statute provides that, when an order for change of venue has been granted, it must be perfected by noon of the second day thereafter, and that when perfected the clerk must forthwithtransmit to the clerk of the court to which the cause is sent a transcript of the record and proceedings, with all the original papers; having first made out and filed in his office authenticated copies thereof. Code, § 3509. It is evident from this provision that the making and transmission of the transcript is not the act, or one of the acts, which is necessary to “perfect” a change of venue; for by the express words of the statute the clerk is required to make and transmit such transcript only when the change has been perfected. The fact, therefore, that the clerk's first transcript on the day following the order for a change was not as complete as it should have been, and required subsequent amendment, cannot, we think, affect the jurisdiction of the court. It is true, the statute says this duty of the clerk shall be performed “forthwith,” but that can mean no more than that he must act promptly and with reasonable dispatch. The work he is required to do is of such nature that it cannot be done instantly, and it may easily occur that the record is entirely too voluminous to be transcribed by noon of the second day; and, if made and transmitted within a reasonable time thereafter, no rights are lost. And if, as claimed, the clerk's first transcript was not complete in every respect, or if the certificate thereto was not entirely formal, we do not regard such defect a jurisdictional matter, and see no reason why, under such circumstances, if the defect be found material, the court may not require the proper amendment to be made. The failure of the clerk of Monona county to make a written minute or entry of the filing of the transcript at the date of its receipt is also immaterial. The fact that the papers were transmitted by the clerk of Woodbury county on the several dates named is admitted, and their receipt by the clerk of Monona county in due course of mail or express is not denied. Everything was done in that respect which ought to have been done, except the making of the usual minute or entry of the filing. When the papers were received into the official custody of the clerk, and the case was entered upon the docket of that...