Garrett v. Bickler

• Decision Date: 04 June 1889
• Parties: GARRETT v. BICKLIN, WINZER & CO
• Court: Iowa Supreme Court

42 N.W. 621

78 Iowa 115

GARRETT v. BICKLIN, WINZER & CO

Supreme Court of Iowa, Des Moines

June 4, 1889

Decided May, 1889.

Appeal from Des Moines District Court.--HON CHARLES H. PHELPS Judge.

ACTION for damages for the wrongful seizure of property on attachment. A demurrer to the petition was sustained and judgment entered for defendants. The plaintiff appeals.

AFFIRMED.

Newman & Blake and E. W. Tatlock, for appellant.

S. L Glasgow, for appellees.

OPINION

GRANGER, J.

I.

Appellant's abstract presents two assignments of error; either of which if sustained, would reverse the judgment: (1) The action of the court in refusing a change of venue; (2) the sustaining of the demurrer to the petition.

Appellant's abstract contains no bill of exceptions, and appellees present an additional abstract, in which a bill of exceptions is set forth; and we first notice a motion to strike from the additional abstract this bill of exceptions. We think there are no reasons for striking the bill of exceptions from the record; but, as a discussion of the questions presented, and a review of the affidavits filed in support of the motion, would add much to the extent of this opinion, we will say that the bill of exceptions in no manner changes the legal import of the record, as presented in appellant's abstract, if we except therefrom the reasons given by the court for its ruling on the motion, and, in our consideration of the case, these reasons will be entirely disregarded.

II. The motion and affidavits to change the venue of the cause for trial were directed to the alleged prejudice of the judge, and, to a proper understanding of the ruling, it will be necessary to set forth the affidavits. They are as follows: "I, A. Garrett, on my oath, say that I am the plaintiff in the foregoing action, and that, as I verily believe, I cannot obtain a fair trial before Hon. CHAS. H. PHELPS, on account of his prejudice against me and my cause of action; that he has tried the same case in substance and decided the same against me, which decision was reversed; that I am informed and believe the said CHAS. H. PHELPS, on more than one occasion, has said in Wapello, Iowa, that the transaction between Mr. Kendall and myself was a damned fraud, and that I never ought to recover in the action; that since the case was last decided in the supreme court the said CHAS. H. PHELPS has said publicly, and more than once, that my cause of action was barred by the statute of limitations, and that I never ought to recover. I further say that all of said defendants are residents of Des Moines county, Iowa, and that I was forced, under the law, to bring my action in the said county of Des Moines. Affiant further says that he did not know fully of the cause on which this application is based until within the past few days. A. GARRETT." The following affidavit was subscribed by twenty persons, residents of Louisa county: "Each of the undersigned, for himself, says that he is a resident of Louisa county, Iowa; that he is not related to the said A. Garrett in any degree whatever; that he is not in the employ of the said A. Garrett, nor is he agent or servant of said Garrett; and he says that the Hon. CHAS. H. PHELPS is so prejudiced against the said A. Garrett that he cannot have a fair and impartial trial before the said CHAS. H. PHELPS of his cause, as he verily believes." No counter-affidavits were filed, nor were any of the affiants called into court for cross-examination, and it is first urged that, upon such a showing, the court had no discretion, and that the change should have been granted as a matter of right. The present statute on the subject is as follows: "A change of the place of trial in any civil action may be had in any of the following cases: * * * (3) Where either party files an affidavit, verified by himself and three disinterested persons, * * * stating that * * * the judge is so prejudiced against him * * * that he cannot obtain a fair trial." But, when either party files an affidavit, as provided by this subdivision, the other party shall have a reasonable time to file counter-affidavits; and the court or judge, in its exercise of a sound discretion, must decide whether a change shall be granted, when fully advised, according to the very right and merits of the matter. The court may, in its discretion, cause the affiants upon either side to be brought into court for examination upon matters contained in their said affidavits." Code, sec. 2590, as amended.

The argument of counsel proceeds upon the theory that as no counter-affidavits were filed, and the affiants were not brought into court for examination, there arose no controversy, and there was nothing for the court to decide.

Prior to 1884 there was no provision for counter-affidavits in such cases, and the court had no discretion. If the affidavits were filed in form, the change must be granted. It is a matter of public history in the state that the law, as it then existed, was much abused, and the correction of this evil was one of the reasons inducing the change. The remedy is by investing the court with a discretion, requiring him to be first "fully advised," and then to decide "according to the very right and merits of the matter," and we do not think the exercise of this discretion is any less a duty with the court when there is no counter-showing than when there is. In any case where the change is sought upon evidence, it is its duty to weigh it, and in the exercise of a sound discretion, as expressed in the law, decide the question. Experience discloses many instances in which a want of merit is manifest upon the face of an ex parte showing. The language as to the filing of the counter-affidavits is permissive; but there is nothing in the language to indicate that without the counter-affidavits the former are to be taken as true.

It is next urged that the refusal to grant the change, under the showing made, was an abuse of discretion. This leads to an examination of the evidence. A reference to the affidavit of the plaintiff will show that it goes further than to state a conclusion of prejudice. It affirms particular acts which, if true, would show prejudice within the contemplation of the law, and no judge who would thus demean himself with reference to a cause pending in his court should ever sit in judgment upon it; and, if convinced of the truth of it in this case, it would here meet its merited rebuke,--if not otherwise, by a prompt reversal of the judgment. But does the record disclose the truth of such statements? The alleged remark as to the fraud seems to have been made in Wapello, and the affidavit is made in this respect upon information. As to the sources of such information, we are not informed; and, without any contradiction, we regard it as of little value. As to the other facts charged, it is not clear whether they are stated as upon information or personal knowledge.

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