Carroll County v. American Emigrant Co. , 37 Iowa 371 ( 1873 )

Day, J.

It is claimed that the cause was properly retained in Carroll county for trial under section 2810 of the Revision, which provides that where a change of venue is taken during a term of court, unless the applicant for the change has procured the transmission of the papers to the proper county, or has paid or secured the costs of the clerk therefor by the morning of the second day after the order is made, the cause shall be retained for trial, as if no change had been prayed.

This section applies to changes of venue ordered upon application of a party. Parties may agree to an order changing the venue, and may stipulate the conditions upon which the order shall be made.

We regard this as a change of venue granted upon the agreement of the parties, and not upon the mere application of one of the parties, and hence not governed by the provisions of section 2810. If the parties had signed and filed in the Carroll district court a paper as follows: “Whereas, the county of Carroll is a party to this suit, therefore we hereby agree that the venue shall be changed to Polk county,” it would not probably be insisted that the venue was changed upon application of defendant, and that he would be governed by the provisions of section 2810. Now, although the form adopted in this case is different, the legal effect of the paper filed must, we think, be the same.

The defendant asks that the venue be changed to Polk county.

On the 4th of September, twelve days before the first day of the September term of the Carroll district conrt, the plaintiff indorses upon this paper its assent that the venue may be changed to Polk county.

This has all the legal effect, and must, it seems to us, be followed by all the legal consequences of an agreement for a change of venue.

This view is strengthened by two other considerations:

1. The parties have stipulated the county to which the change should be made, which, without their agreement, must heve been determined by the court. See Rev. § 2805. ■

2. Th<j order for change was made before issue was' made up, the agreement stipulating the time when answer should be filed.

This could not be done otherwise than by agreement. Revision, 2804. The case not coming under the provisions of section 2810, and the order for change of venue being an unconditional one, we are of opinion that the Carroll county district court lost its jurisdiction over the case, and that the order reinstating it for trial, although no change had been granted, is erroneous. Farr v. Fuller, 12 Iowa, 83; Brown v. Thompson, 14 id. 597. This is the only question really involved, and the only one which we should determine.

If for any reason it is important for the plaintiff to have a final judgment entered in the case, or to controvert the alleged fact of settlement, it can procure the cause to be docketed in Polk county for that purpose.

Reversed.