Oltrogge v. Schutte

• Decision Date: 06 June 1879
• Citation: 51 Iowa 279,1 N.W. 544
• Parties: WM. OLTROGGE, APPELLEE, v. C. SCHUTTE ET AL., APPELLANTS.
• Court: Iowa Supreme Court

51 Iowa 279

1 N.W. 544

WM. OLTROGGE, APPELLEE,

v.C. SCHUTTE ET AL., APPELLANTS.

Supreme Court of Iowa.

Filed June 6, 1879.

Appeal from Bremer circuit court.

Action to foreclosure a mortgage. The defendants pleaded usury. The action was brought originally in the district court, and transferred to the circuit court by an agreement of the attorneys, and a decree was there rendered in accordance with an agreement of the attorneys. The defendants afterwards filed a motion to set aside the decree, which was supported by affidavits and resisted by counter affidavits. In the matter of a hearing upon the motion the defendants moved for a continuance, which was denied. Other facts are stated in the opinion. The motion was overruled and the defendants appeal.G. C. Wright, for appellants.

Carl & Dawson, for appellee.

ADAMS, J.

--I. The appellants insist that the circuit court never obtained jurisdiction of the case. The want of jurisdiction is alleged to consist in the fact that the change in the place of trial of the case, from the district court, was made upon an agreement which was not signed by the parties. They rely upon § 2590 of the Code, subdivision 4, by which it is provided that a change in the place of trial may be had “by the written agreement of the parties and their attorneys.” It is insisted that the word “and” is to be taken in its conjunctive sense, and that no change can be had without the written consent of both the parties and their attorneys. It is not to be denied, we think, that looking at the language alone, this would be the more obvious construction. But no satisfactory reason has been suggested why a change should not be allowed upon the written agreement of either the parties or their attorneys. The agreement of the parties should certainly be sufficient. But attorneys represent the parties being employed by them for their skill, and we see no useful purpose that could be served by a provision that should disallow a change upon the written agreement of the attorneys alone. On the other hand, we can see that great inconvenience might often arise from a provision making their agreement alone insufficient. We believe the practice has been to a very great extent to treat it as sufficient. To hold it to be insufficient now would have the effect, we believe, to annul a large number of judgments and titles. In view of these considerations and the fact that the construction contended for is by no means a necessary one, we are unwilling to adopt it. If the provision were that a change may be had by agreement, but only in case the agreement is in writing, and signed by the parties and their attorneys, there would be no escape from the conclusion that the word “and” should be taken in a...