Funk v. Carroll County

• Court: United States State Supreme Court of Iowa
• Citation: 64 N.W. 768,96 Iowa 158
• Parties: E. M. FUNK v. CARROLL COUNTY, Appellant
• Decision Date: 22 October 1895

64 N.W. 768

96 Iowa 158

E. M. FUNK v. CARROLL COUNTY, Appellant

Supreme Court of Iowa, Des Moines

October 22, 1895

Appeal from Carroll District Court.--HON. GEORGE W. PAINE, Judge.

In 1889, the plaintiff was clerk of the defendant county, and one Lynch was his deputy, and this action is for money paid by the plaintiff for the services of the deputy. There was a judgment for plaintiff, and the defendant appealed.

Reversed.

Geo. W Korte, county attorney, for appellant.

M. W Beach for appellee.

OPINION

Granger, J.

I.

F. W. Krause was a witness for the defendant. At the term at which the cause was tried, Krause was sick, and the defendant made an application for a continuance because of the inability of Krause to attend the court. The application was resisted, and one of the grounds of resistance was, that the witness was "within easy reach of the court, and plaintiff is willing to go to the residence of the witness to take his testimony." The motion was overruled, "conditioned that the testimony of F. W. Krause be taken at his residence." Defendant excepted to the ruling, and the cause was tried to the court without a jury. During the taking of the testimony for the defense, the following appears as a part of the record: "And now the court adjourned until 7:30 o'clock P. M., to meet at the private residence of F. W. Krause, in Carroll, Iowa this evening, when at said time the court convened and proceeded to examine said F. W. Krause as a witness for the defense, he being at the time confined in his house, sick, and unable to attend the trial of said cause in the courthouse. That said defendant, according to the motion for continuance, then and there duly excepted."

This action of the court is assigned as error, and it seems to us that the assignment is well taken. Carroll county is provided with a regular courthouse at the place where the courts were to be held, and that was the place provided by law. Code section 173. By section 192, it is provided: "Courts must be held at the place provided by law, except for the determination of actions, special proceedings, and other matters not requiring a jury, when they may, by consent of the parties therein, be held at some other place." In a county where there is a regular courthouse provided and used for the holding of courts, unless by consent of the parties, the court has no authority to adjourn the court to a private house for the purpose of a trial; and if done, the court, so sitting is without jurisdiction. This holding, of course, has no reference to cases arising under Code, sections 173, 174, where the place of holding the court is changed because not suitable. See State v. Shelledy, 8 Iowa 477; O'Hagen v. O'Hagen, 14 Iowa 264; Casey v. Stewart, 60 Iowa 160 (14 N.W. 225); Moore v. Railway Co., 94 Iowa 736 (61 N.W. 992). The danger to result from permitting the...