Moyers v. Council Bluffs Nursery Co.

• Decision Date: 05 June 1906
• Citation: 107 N.W. 924,132 Iowa 98
• Parties: MOYERS v. COUNCIL BLUFFS NURSERY CO. ET AL.
• Court: Iowa Supreme Court

132 Iowa 98

107 N.W. 924

MOYERS

v.COUNCIL BLUFFS NURSERY CO. ET AL.

Supreme Court of Iowa.

June 5, 1906.

Appeal from District Court, Boone County; W. D. Evans, Judge.

The opinion states the case. Affirmed.

John P. Organ and Stevens & Fry, for appellants.

Dyer & Hull, for appellee.

WEAVER, J.

This action having been brought in the district court of Boone county, Iowa, the defendants appeared thereto and moved to transfer the cause to the district court of Pottawattamie county for trial, on the ground that they were residents of the latter county and the contract sued upon was not one giving jurisdiction in the former county. This motion was overruled, and the cause proceeded to trial on its merits, resulting in a judgment for the plaintiff. On appeal to this court the judgment was reversed; it being held that the motion to transfer to Pottawattamie county should have been sustained. Moyers v. Nursery Co., 125 Iowa, 672, 101 N. W. 508. Upon being remanded to the district court, defendants renewed their motion to transfer the cause, and for an allowance for expenses and attorney's fees incurred by them in preparing and submitting the motion for change of place of trial, $75; for attorney's fees in defending the action upon the trial in Boone county, $263.05; for personal expenses of Fogarty in attending the trial in Boone, $103.40; and for attorney's fees in prosecuting the appeal to the Supreme Court, $300. The trial court sustained the motion to transfer, and assessed in defendant's favor, under Code, § 3504, the sum of $75 as “compensation for their trouble and expense in attending at the wrong county.” Other items claimed were disallowed, and defendants appeal.

The ruling was correct. The statute cannot be construed to mean that a person sued in a wrong county may recover, not only for his trouble and expense in moving for a change to the proper county, but in addition thereto recover compensation for all his time, trouble, and expense in defending the case upon its merits. In the absence of any showing to the contrary, these latter items cannot be presumed to be any greater in one county than another. Under ordinary circumstances the only penalty assessed for prosecuting an unsuccessful action in the courts is the payment of taxable costs. The statutory provision here in question is not intended to change this rule, except so far as to entitle the party sued in a wrong county to recover for the extraordinary expense and trouble in...