Perkins v. Jones , 55 Iowa 211 ( 1880 )

Day, J.

1. PRACTICE ; veiíuo*- after verdict. — The sole question involved is whether after verdict, and whilst a motion for a new trial is pending, a change of venue may be awarded to another court. Wo J are c^eai’iy of opinion that such change cannot be granted. There are many reasons against granting a change at such stage of the proceedings. Section 2590 of, .the Code provides that a change of the place of trial may be had. Section 2739 of the Code provides that a trial is a judicial examination of the issues in an action, whether they be issues of law or of fact. Now it cannot be claimed that the passing upon a motion for a new trial is the examination of an issue of fact or of law in the case. It is no more than a review of the question whether the issues of law or of fact have already been properly determined, or whether they shall again be submitted to adjudication. Section 2838 of the Code provides that the application for a new trial must be by motion. The very name, motion for co new trial, suggests that the passing upon the motion is not a trial, but simply a determination whether any further trial shall be allowed. The inconveniences of submitting to a court, other than the one which tried the case, the determination of the question whether a new trial should be granted would be incalculable, and in many cases would result in a practical denial of justice. Attached to every case there is an unwritten history which can never be presented to any other court than that which tried the cause. The degree of intelligence of the witnesses, their manner of testifying, their deportment upon the trial, can never be presented to any other than the trial court. It is for this reason that this court so reluctantly interferes with an order of the nisi prius court, granting or refusing a now trial upon the testimony.

[f the evidence has not all been taken down upou the trial, no other than the trial court can know any thing about the evidence; and if the testimony has been taken down in short hand the party moving for a new trial must, if the determination of the question is sent to another court, be to the expense of procuring a translation of the reporter’s notes, before he can have his motion determined. Other objections to the granting of a change of venue at such stage of the proceedings might be pointed out, but we deem it unnecessary. In our opinion the statute does not authorize a change of venue under the circumstances disclosed. The appellee urges that the statute provides that a change of venue may be had at any time during the pendency of the action. The statute contains no sueli provision. Surely it would not be claimed that a change of venue could be taken pending the introduction of \evidence, or the arguments to the jury.

In allowing the change of venue the court erred.

Reversed.