Farr v. Fuller , 12 Iowa 83 ( 1861 )

WRIGHT, J.

In re-dockcting the cause and dismissing it there was error. The order for the change of venue was unconditional. After this the District Court of Story, and not that of Polk, was the proper tribunal to apply to for any order or relief. The District Court of Polk County had no longer jurisdiction of the cause. (Campbell v. Thompson, 4 G. Greene, 415 ; Ib. 322.) The venue was changed by agreement because of the interest of the presiding judge, and while it was the duty of the plaintiff to prosecute his action, and while for his failure to do so, his cause could be dismissed, this should have been applied for in Story County.

The case is not like that of Eckles v. Kinney, 4 Iowa 539. There the parties, after the order for the change, at a subsequent term, voluntarily submitted their cause in the court ordering the change. So in the case of The State v. Ensley et al, 10 Iowa 149, the party asking the change failed to comply with a rule of court, and for this cause the order for a change of venue, was at the same term set aside. Here, however, no terms were affixed to the order, nor was there any subsequent waiver of the same, nor was there any failure to comply with any order made in such a sense as to justify the court in taking jurisdiction of the cause.

Judgment reversed.