Lyons v. Frazier , 8 Iowa 349 ( 1859 )

Woodward, J.

The proceeding was erroneous. The rule concerning suing in a wrong county, is ordinarily more applicable to cases where one is sued alone. This is a case where two are sued, for a supposed joint trespass, and where they may be joined, if both are guilty, or if the plaintiff believe them so ; he taking his risk of the consequences in case it should appear that there was no cause against the one who is brought from his own county. We will not say that the above rule may not be applied to such a case, when the proper stage is arrived at; hut it cannot at the point where it is attempted here. Where an action is brought against two or more resident defendants, it must be commenced in the county where some of them dwell; and others will, of necessity, be drawn from the place of their residence, if they reside in different counties.

The question whether two are rightly sued, jointly, cannot be tried in the manner directed by the court. It was erroneous to order the plaintiff to take issue on the motion of the defendant, Frazier, and thus try a part of the case. Substantial issues, like these, cannot be tried upon motion. This seems so clear, that it does not seem requisite to spend time in discussing it. The court erred in ordering the issue on Frazier’s motion, in discharging Town, and in ordering a change of venue in respect to Frazier. Therefore the judgment is reversed, and the cause is remanded, with directions to proceed therein as required by law.