Maxon v. Chi., M. & St. P. Ry. Co.
| Decision Date | 22 October 1885 |
| Citation | 25 N.W. 144,67 Iowa 226 |
| Parties | MAXON v. CHICAGO, M. & ST. P. RY. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Clinton circuit court.
Plaintiff brought this action to recover damages on account of the killing by defendant on its railway track of one horse, and the injury of another. There was a verdict and judgment for plaintiff in the circuit court, from which defendant took an appeal. After the appeal was perfected, plaintiff filed a motion in the circuit court to correct the record in the cause by returning to the files the original exceptions to the instructions of the court to the jury, and striking from the files a pretended motion for a new trial, which was then on the files, and substituting therefor the real motion which was filed in the case by defendant. The circuit court sustained this motion, and made the order prayed for therein, and from this order defendant also appealed. Both appeals will be disposed of in one opinion.N. Corning and A. T. Wheeler, for appellant, Chicago, M. & St. P. Ry. Co.
W. C. Grohe, A. R. McCoy, and A. Howat, for appellee, N. Maxon.
We will first consider the questions presented under the appeal from the order correcting the record. When this motion was filed there was among the files in the case a paper which purported to be a motion by defendant for a new trial. This paper appeared, by the note of filing indorsed on it by the clerk, to have been filed within three days after the verdict was returned, and in it exceptions are alleged to certain of the instructions given by the court to the jury on the trial of the cause. It also contained a recital that the defendant had excepted on the trial to the refusal of the court to give certain instructions asked by it. The ground of the motion to correct the record is that the exceptions to the instructions given by the court were not alleged in the motion for a new trial when it was originally placed on file, and that it did not then contain the recital that defendant had excepted to the refusal of the court to give the instructions asked by defendant. It is also alleged in the motion that a paper which was designated an assignment of errors, and which had been filed in the cause, had been withdrawn from the files without leave of the court. On the hearing of the motion the circuit court found that the motion for a new trial had been changed after it was filed, in the respects alleged; also that the paper designated an assignment of errors had been removed from the files; and it ordered that the paper purporting to be a motion for a new trial then on the files be stricken therefrom, and that a copy of the motion as originally filed be substituted for it on the files; and that the paper which had been withdrawn from the files without leave be returned thereto.
1. After the motion to correct the record was filed, defendant filed a motion, supported by affidavit, for a change of the place of trial, on the alleged ground that the judge of the circuit court was so prejudiced against it that it could not obtain a fair trial before him. The overruling of this motion is assigned as error. We deem it a sufficient answer to the argument of counsel on this question to say that the law makes no provision for a change of place of trial in such a proceeding. The cause was not pending in the court for trial. It had already been tried and disposed of, and the proceeding was to correct the records of the court in certain respects wherein it was alleged they had been falsified. The proceeding was entirely distinct from the trial of the cause, and none of the...
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