State v. District Court of O'Brien County

• Decision Date: 26 October 1920
• Docket Number: 33452
• Citation: 179 N.W. 442,189 Iowa 1167
• Parties: STATE OF IOWA, ex rel. Anna Erdahl, Plaintiff, v. DISTRICT COURT OF O'BRIEN COUNTY et al., Defendants
• Court: Iowa Supreme Court

179 N.W. 442

189 Iowa 1167

STATE OF IOWA, ex rel. Anna Erdahl, Plaintiff, v. DISTRICT COURT OF O'BRIEN COUNTY et al., Defendants

No. 33452

Supreme Court of Iowa, Des Moines

October 26, 1920

Certiorari to O'Brien District Court.--WILLIAM HUTCHINSON, Judge.

PROCEEDINGS in certiorari, to test the legality of the action of the district court in refusing a change of venue to the relator pursuant to Section 3505, Subdivision 6, of the 1913 Supplement, in an action brought against the relator, as defendant therein, in O'Brien County, the relator being a resident of Winnebago County.

Writs of certiorari, sustained, and order annulled, with direction.

John F D. Meighen, Bennett O. Kindson, and Thomas A. Kingland, for plaintiff.

O. H Montzheimer, for defendants.

EVANS, J. WEAVER, C. J., PRESTON and SALINGER, JJ., concur.

OPINION

EVANS, J.

I.

The relator, Erdahl, was sued upon a promissory note, drawn payable in O'Brien County. She filed an answer therein, setting up as a defense that the note was obtained from her by false and fraudulent representations. At the same time, she filed an application for a change of venue to the county of her residence, pursuant to the provisions of Subdivision 6, Section 3505, of the 1913 Supplement. Her application for a change of venue having been denied, she has brought these proceedings. Section 3505, Subdivision 6, is as follows:

"In an action brought on a written contract in the county where the contract by its express terms is to be performed, in which a defendant to said action, residing in a different county in the state, has filed a sworn answer alleging fraud in the inception of the contract constituting a complete defense thereto, such defendant, upon application and the filing of a sufficient bond, may have such action transferred to the district court of the county of his residence. If upon the trial of the action judgment is rendered against the defendant, it shall include the reasonable expenses incurred by the plaintiff and his attorney, on account of change of place of trial, as part of the costs. The bond above referred to shall be with sureties to be approved by the clerk, in an amount to be fixed by the court or judge in vacation for the payment of all costs which may accrue in the action in the court in which it is brought, or in any other to which it may be carried, either to the plaintiff or to the officers of the court."

This subsection constitutes an amendment to the original statute pertaining to change of venue. It is directed to a particular class of litigation. It is a matter of general observation that written contracts are not infrequently obtained by means of fraudulent representations and other guile, and that such contracts, when so obtained, are usually made payable at some place remote from the maker's residence. The result is that the innocent maker, as such, finds himself at a discouraging disadvantage, in that he is compelled to submit to the wrong, or else to defend in a remote county. Such requirement becomes a lever of oppression in the hands of the wrongdoer. The general rule of the statute was and is that personal actions must be brought against residents of this state in the county of their residence. The general exception to this general rule is that a defendant may be sued upon a written contract where payable. The purpose of the amendment above quoted is to withhold such exception from a written contract, where there is a good-faith issue of fraud in the inception of the transaction. In order to insure such good faith, it requires that the facts constituting the alleged fraud shall be set forth under oath, and that bond be given for costs, including expenses of plaintiff and his attorney in attending at wrong county, if the defense fails.

The relator filed her answer, purporting, at least, to comply with the requirements of the statute, and setting forth the purported defense on the ground of fraud in the inception of the contract. She also tendered her bond. Two questions naturally arise:

(1) Did the trial court err in refusing her application for a change of venue?

(2) Will certiorari lie to correct such error?

The ground upon which the court denied the application does not appear in the record. We can only surmise that the distinguished trial judge acted under the impression that he had a discretion in the matter, as provided by Subdivision 3 of Section 3505. We deem it clear, however, that the discretion provided in Subdivision 3 has no application to Subdivision 6. The right of the relator to a change of venue, upon compliance with the requirements of said Subdivision 6, is mandatory. It follows that it was error to deny such application. Indeed, the burden of attack for appellees is directed to the second question, and not to the first, and we turn thereto.

Was the ruling of the court denying the application for a change of venue a mere error, or did such denial amount to an illegality, within the meaning of the statute, which may be corrected upon certiorari? If yea, was there any other speedy and adequate remedy to the relator?

Some attack is made by appellee upon the sufficiency of the answer set up by the relator. We will not scrutinize the answer to the same degree that we would upon a motion or demurrer attacking the sufficiency of the same. The sufficiency of the answer was in no manner attacked in the court below, and we think that the appellee should not be permitted to attack it indirectly by mere argument here, in the absence of attack below. The answer purported to set up the very defense described in Subdivision 6. It charged the fraudulent representations, and purported to set the same out. Whether these allegations are sufficiently specific, or whether they charge legal conclusions to an undue degree, are proper questions for the consideration of the district court, upon the settling of issues. Without passing, therefore, upon the perfection of the answer as a pleading, or upon the question whether it is vulnerable to any attack, we only say now that it was sufficient, at least in the absence of attack, to entitle the relator to the change of venue asked for.

It is urged that the relator had speedy and adequate remedy by appeal, and that for that reason certiorari was not available to her. She had no right of appeal from the order of denial. She could not obtain a review thereof by appeal, except by appeal from an...