McGovern v. Keokuk Lumber Co.

Seekers, J.

1. venue: motion for by afflciavit*011' — I. The statute provides that a change in the place of trial may he had “when either party files an affidavit, verified by himself and three other persons.” that the judge is so prejudiced against him that he cannot obtain a fair trial. Code, § 2590. The statute fails to prescribe by whom the principal affidavit shall be made, if the change is desired by a corporation. As a corporation can only act through officers or agents, it is evident that the requisite affidavit must be made by such officers or. agents, and in Jones v. C. & N. W. R. R. Co., 36 Iowa, 68 , it was held that the principal affidavit could ho “made by an officer or agent sufficiently acquainted with the facts to make it conscientiously.”

In the case at bar, that which must be regarded as the affidavit of the defendant is as follows:

“I, W. J. McGavic, Vice-President of the defendant above named, being duly sworn, on my oath say that W. J. Jeffries, judge of the court in which said cause is pending, is so prejudiced against the defendant in the above cause that the defendant cannot obtain a fair trial in said court, as I verily believe, and such prejudice was not known to affiant before the continuance of this cause at last term.”

It is urged that this affidavit is insufficient, because the statement that affiant is vice president of defendant is not verified. We cannot know that McGavic was at the time the affidavit was made an officer of the defendant, or that he had authority to represent it. His unverrified statement that he was such officer is clearly insufficient to establish such fact. Cunningham v. Goelet, 4 Denio, 71 . Ex parte Shumway, Id., 258. We do not understand counsel for the appellee to strenuously insist that the affidavit is sufficient, but they claim that, because of defects in the record, we are precluded from determining that question. To the questions presented by counsel .for appellee we now turn our attention.

*267

2._._; aredpai-tSofOT recoid.

*266 II. It is said, as the affidavits were not preserved and *267 made matters of record by a bill of exceptions, they are im properly in the record, and a motion has been made to strike them out. It was held in Winet v. Berryhill, 55 Iowa, 411 , that no bill of exceptions in such case was required. The affidavits, when filed, become a part of the record like a demurrer, and may be certified to this court by the clerk in the same manner as other matters of record. The affidavits are set forth in the abstract, with proper averments or statements, and, in the absence of a denial that they were duly certified by the clerk, the presumption will be indulged that such is the case. The affidavits must therefore be regarded as a part of the record, and the motion to strike must be overruled.

_._. practice on appeal. III. "When the order was made granting the change of the place of trial, exceptions thereto were duly taken. But the record fails to show that any objections were made to the sufficiency of the affidavits, and for this reason, and because it does not affirmatively appear that the objections now made were urged in the circuit court, it is claimed the objections made in this court cannot he entertained. The appellant was not bound or required to make his objections in writing, or in any manner make them appear of record. The objections could be made orally in the circuit court. Nor was he required to procure a bill of exceptions, showing the reasons, grounds, or arguments urged below, before he can be heard in this court. He has a right to make here all objections which legitimately arise on the record, whether made below or not. The rule probably is different in cases where a party is required to state in writing, or make appear of record, the objections urged in the court below. The question before the court was as to the sufficiency of the affidavits. This was determined adversely to appellant, and he excepted. He could do no more, and he has the right to test the sufficiency of the affidavits on appeal.

*268

practice in trial and appellate courts. IY. The abstract states, after setting out the affidavits, that “the foregoing were all the papers, affidavits and evidence filed in support of the motion, or used upon the hearing thereof.” This statement is denied in an amended abstract, and it is said, as there is no bill of exceptions, we cannot know that all the affidavits and evidence which wrere before the circuit court is set out in the record. In support of this position Stockton v. Burling ton., 4 G. Greene, 84; Nicking v. Nesmith, 15 Iowa, 595 ; Bennett v. Heyland, Id., 597 and Sowdon & Co. v. Craig, 21 Iowa, 580 , are cited. These cases we do not think applicable. In all of them, evidence, in addition to affidavits filed in support of the motion, could be legitimately introduced at the hearing by the party making the motion or asking the relief desired. Therefore, it was held, before there could be a reversal, it must affirmatively appear that all the evidence introduced below was in the record before the court. This is the general rule, but we think this case constitutes an exception thereto. In the case at bar, the statute prescribes that the place of trial may be changed when affidavits are filed setting forth the statutory reasons. The moving party can add nothing thereto, but must stand or fall on the affidavits on file. Nor can the other party file affidavits or introduce evidence contradictory to the affidavits filed by the moving party. It is true, he may insist that the affiants, other than the party, shall be produced in court and subjected to a cross-examination to the end that the court may protect itself from imposition. Davis v. Rivers, 49 Iowa, 435 . The right to have this done is not, we incline to think, absolute, but discretionary on the part of the court to prevent fraud in the administration of justice. In the absence of any showing that such action was taken, we cannot presume such to be the case. But it is not the law, and it never has been held, that the party by whom the principal affidavit is made can be compelled to submit to an examination as to the truth of the *269 matters stated in his affidavit. The judgment of the circuit court must be reversed, and the cause remanded to that court for further proceedings in accordance with this opinion.

Reversed.