Hall v. Royce
| Decision Date | 15 June 1881 |
| Citation | 9 N.W. 295,56 Iowa 359 |
| Parties | HALL v. ROYCE |
| Court | Iowa Supreme Court |
Appeal from Butler Circuit Court.
THIS action was commenced in the Circuit Court of Floyd county, at the September term, 1879, and notice was served on the defendant in Butler county. At the September term the defendant appeared and made application for change of the place of trial to Butler county, on the ground that the defendant was a resident of that county, and also for an order for compensation for being compelled to attend to the suit in the wrong county. The application was sustained, and an order was made transferring the cause as prayed, and awarding to the defendant twenty-five dollars for his trouble and expense in attending upon the court in the wrong county.
At the January term, 1880, of the Floyd Circuit Court, and at the May term, 1880, the cause remained on the calendar, and was continued by order entered in the usual form. At the September term, 1880, of said court, the cause being still on the calendar, the defendant filed a motion to strike it from the docket, because the same had been finally disposed of by order of the court at the September term, 1879. The motion was sustained.
On the 26th day of August, 1880, plaintiff served upon defendant's attorney a notice in writing to the effect that he would cause to be filed in the office of the clerk of the Circuit Court of Butler county the papers in said cause and a certified copy of the record, and that said cause would be brought on for hearing at the November term, 1880, of said court. On the 21st of October, 1880, there was filed in said office a duly certified copy of all the papers filed in said cause in the Floyd Circuit Court, also a duly certified copy of the record of the cause in said court.
At the November term, 1880, the cause having been placed on the calendar by the clerk of the Butler Circuit Court, the defendant filed a motion to strike it therefrom, on the grounds that said cause was discontinued by the failure of the plaintiff to comply with the order of the court changing the place of trial, and by failure of plaintiff to cause to be filed in the Butler Circuit Court the papers and copy of the record in the cause, as required by law.
The motion was overruled. Defendant appeals.
REVERSED.
Hemenway & Polk, for appellant.
J. W Merrill and J. H. Scales, for Appellee.
The order for a change of the place of trial was made under section 2589 of the Code, which provides that "if the sum so awarded (the amount allowed the defendant for attending at the wrong county) and costs are not paid to the clerk at a time to be fixed by the court, or if the papers in such case are not filed by the plaintiff in the court to which the change is ordered ten days before the first day of the next term thereof, or, if ten days do not intervene between the making of said order and the first day of the next term of said court, ten days preceding the...
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