State ex rel. Havner v. Associated Packing Co., 41586.
| Decision Date | 26 September 1933 |
| Docket Number | No. 41586.,41586. |
| Citation | 216 Iowa 1053,250 N.W. 130 |
| Parties | STATE ex rel. HAVNER, Atty. Gen., v. ASSOCIATED PACKING CO. et al. HYNES v. THOMPSON. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Dallas County; W. S. Cooper, Judge.
This is an action brought by appellee in Polk county, Iowa, as receiver of the Associated Packing Company, against this defendant and others for judgment upon an assessment against their alleged unpaid stock subscriptions.
A change of venue was granted this defendant to Dallas county, where he resided. The defendant in the Dallas county court moved to strike all papers transferred to Dallas county from the files in said county. Its motion was overruled, and he then filed a demurrer, which was also overruled. Judgment was thereupon entered against this defendant, and he appeals. Reversed.
See, also, 249 N. W. 761.M. A. Roberts, of Ottumwa, S. W. Livingston, of Washington, Iowa, and S. G. Van Auken and O. M. Brockett, both of Des Moines, for appellant.
Parrish, Cohen, Guthrie & Watters, Chas. Hutchinson, and Stuart S. Ball, all of Des Moines, for appellee.
In 1925 the appellee, as receiver of the Associated Packing Company, filed an action in the receivership proceedings, in Polk county, for an assessment upon unpaid stock subscriptions in the Associated Packing Company, and for judgment thereon.
This defendant, and a large number of other defendants, moved that the action be transferred from equity to law; that it be separated as to all of the defendants; that a change of venue be granted to this and all defendants not residing in Polk county at plaintiff's costs, and he be allowed reasonable costs and expenses in securing the change.
The lower court overruled defendant's application; but in 1927 the Supreme Court in Kosman v. Thompson, 204 Iowa, 1254, 215 N. W. 261, on certiorari ordered that a change of venue be granted; that the suits be separated as to various defendants; and that the action for judgment be transferred from equity to law. Procedendo was duly filed in Polk county.
The record shows no further proceedings in relation to this case until October 17, 1931, when this defendant filed a motion for a change of venue to Dallas county where he resided; in this motion he states that he was obliged to employ counsel to procure a change of venue, and he asked for a change of venue to Dallas county at plaintiff's costs, and that he be allowed a reasonable attorney's fee for trouble and expense in procuring the change. On the 17th day of October, 1931, the district court of Polk county made the following ruling on said motion: “Now on this day this cause comes on for hearing upon motion for change of venue and the court being fully advised in the premises; motion sustained.”
That thereafter, on March 8, 1932, the district court of Polk county entered another order (ex parte) transferring this case to the district court of Dallas county, directing the clerk to transmit a certified copy of the petition in this case to Dallas county district court. This order purported to be entered pursuant to the ruling in Kosman v. Thompson, 204 Iowa, 1254, 215 N. W. 261, and was entered without notice to or knowledge of defendant herein.
Upon learning of the latter order, the defendant's attorneys on the 9th day of March advised the Polk county court that the order of transfer had been improvidently made, and thereupon defendant was granted three days to file a written motion to set aside the court's order of transfer. On March 11, 1932, the defendant filed a written motion in the Polk county court to set aside the ex parte transfer order of March 8, 1932, because such order was not in compliance with the order of the Supreme Court in Kosman v. Thompson, because the Supreme Court in that case directed the lower court to sustain defendant's motion for a change of venue which contained an application for costs and expenses of defendant in attending the wrong county; that no order was ever entered or hearing had in the lower court to determine the amount of such costs and expenses pursuant to the order of the Supreme Court in the Kosman Case, pursuant to law, requiring their allowance and payment before transferring the case.
When this motion was presented, the Polk county district court made the following order: “Upon reading the foregoing Motion it is now, this 11th day of March, 1932, ordered by the court that the clerk of this court withhold transcripts directed in the order of this court of March 8, 1932, to be prepared and transmitted by said clerk to the Clerk of the District Court of Dallas County, and that any further proceedings in pursuance of said order of March 8, 1932, be abated until the foregoing motion to vacate and set aside the same can be submitted and disposed of by the court.”
Defendant's motion to set aside the order of the Polk county court transferring the case to Dallas county was never ruled on and is still pending.
On March 10, 1932, a certified copy of so much of the Polk county petition asking judgment against the defendant on the assessment against the unpaid stock subscription was filed with the clerk of the district court of Dallas county.
On March 16, 1932, this defendant filed an application for a stay order in the district court of Dallas county, and moved to abate further proceedings therein upon the following grounds, among others: That the order of the Polk county court transferring this case to Dallas county had been improvidently made; that a motion to set aside the order of transfer was undisposed of and still pending in Polk county; that the procedendo returned in the Kosman v. Thompson Case had not been complied with; and that no hearing on the application to determine the amount of costs or attorney's fees allowable to defendant was ever made or paid by the plaintiff to this defendant in accordance with the order of the Supreme Court in Kosman v. Thompson, 204 Iowa, 1254, 215 N. W. 261.
Plaintiff filed a resistance to defendant's application for a stay order, and as one of the grounds thereof alleged that the defendant himself on or about October 17, 1931, had filed a motion in the Polk county court for a change of venue, which motion is hereinabove referred to, and that said motion was sustained on the 17th of October, 1931. Another ground upon which appellee filed a resistance was that appellant at no time asked the court to fix the amount of attorney's fees and costs. On March 16, 1932, the court overruled defendant's motion for a stay of proceedings.
On March 18, 1932, the receiver filed an amended and substituted petition in the Dallas county court alleging his appointment as receiver of the Associated Packing Company and asking judgment against this defendant upon the assessment against his unpaid stock subscription.
Thereupon the defendant filed a motion, as amended, to strike the plaintiff's amended and substituted petition from the files. Among the grounds urged for this motion is that the appellee failed to comply with sections 11054 and 11420 of the Code in relation to filing of the papers required where a change of venue has been granted, and that the district court of Dallas county did not have jurisdiction of said action. This motion was also overruled by the court.
Thereupon the defendant filed a demurrer to the plaintiff's amended and substituted petition for all reasons set out in the motion to strike the amended and substituted petition. This demurrer was on April 18, 1932, overruled; the defendant stood upon the ruling; and judgment was entered against him for want of further pleading.
As this case can be disposed of upon the court's ruling on defendant's motion to strike appellee's pleadings from the files in Dallas county, it is unnecessary to discuss many other errors urged.
1. It is contended by appellant that his motion to strike the receiver's amended and substituted petition should have been sustained because the papers filed in the Dallas county district court were not filed in compliance with Code, §§ 11053 and 11054.
The original action for a stock assessment and for a judgment thereon against the unpaid stock subscriptions was begun in 1925. This defendant filed an application for change of venue to Dallas county, where he resided. This application was overruled by the lower court, but later the motion was ordered sustained by the Supreme Court as prayed in Kosman v. Thompson, 204 Iowa, 1254, 215 N. W. 261.
After such ruling of the Supreme Court was entered, the defendant on October 17, 1931, filed a motion for a change of venue in the district court of Polk county, and on the 17th day of October, 1931, the Polk county court sustained the motion for...
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