Laughlin v. Main

• Decision Date: 04 June 1884
• Citation: 19 N.W. 673,63 Iowa 580
• Parties: LAUGHLIN ET AL. v. MAIN
• Court: Iowa Supreme Court

19 N.W. 673

63 Iowa 580

LAUGHLIN ET AL. v. MAIN

Supreme Court of Iowa, Des Moines

June 4, 1884

Appeal from Ringgold District Court.

ACTION OF REPLEVIN. A motion by defendant to change the venue to the county of his residence was overruled, and thereupon defendant failing to plead to the petition, default was entered and judgment rendered thereon. The defendant appeals.

AFFIRMED.

Fogg & Neal, for appellant.

Askren Bros. and Laughlin & Campbell, for appellees.

OPINION

BECK J.

I.

The plaintiffs sought by this action to recover possession of specific personal property. A bond was filed, and a writ of replevin was issued, which was returned without service showing the delivery of the property to plaintiffs, the officer stating therein that it was not found, and that defendant did not either admit or deny that it was in his possession.

The defendant at the next term of court filed a motion asking that the venue of the cause be changed to Madison county, for the reason that he resided therein; that the cause of action did not arise in Ringgold county, and was not based upon a written contract to be performed in that county, and that no part of the property in question was at any time situated in Ringgold county. The facts upon which the motion was based are shown in an affidavit of defendant. It is admitted by plaintiff that defendant resided in Madison county, but plaintiffs filed certain affidavits, showing that defendant, on the day after the officer demanded the property, admitted that it was in his possession.

The correctness of the defendant's abstract is denied by plaintiffs, and they make certain amendments thereto, which are in turn denied by defendant. It therefore becomes necessary to refer to the written record filed in the case in this court, from which it appears that the affidavits filed by plaintiffs tend to establish that the property, at the time the suit was commenced and service of the writ was attempted, was in Ringgold county. But the record fails to show that all the evidence upon which the court acted in deciding upon the motion was preserved and is presented to us. For aught that appears in the record, there may have been other evidence submitted upon the motion, or there may have been admissions, or other facts shown, establishing beyond dispute that the property was at the proper time in Ringgold county, thus subjecting it and the defendant to the jurisdiction of the courts of that county. We will exercise presumptions in favor of the decision of the district court, which we will not reverse, unless it be made to appear that we have before us all the evidence upon which that court acted.

II. But counsel for defendant contend that the court of Ringgold county did not acquire the right--jurisdiction--to retain and try the action after plaintiff's application for the change of venue, for the reason that the property was not reached by the writ of replevin, and thereunder delivered to the plaintiff. In other words, it is insisted that an action of replevin in all cases must be changed to the county of the residence of defendant, when the property is not taken and delivered under the writ.

Code section 3225, provides that "an action for the recovery of specific...