Citation Numbers: 126 Iowa 579
Judges: Sherwin
Filed Date: 2/11/1905
Status: Precedential
Modified Date: 7/24/2022
This suit was commenced before a justice of the peace, and on the return day the defendant appeared and filed an answer. A motion to strike from the answer and to make it more specific was thereupon filed by the plaintiff, and was sustained. The defendant then filed a substituted answer, and immediately thereafter a motion for a change of venue, which was sustained, and the case was sent to the next nearest justice, where a trial was had and a judgment rendered for the defendant.
The controlling question is whether the change was-rightly granted, and its solution depends on the construction of section 4502 of the Code, which provides that “ either party, before the trial is commenced, may have the place of trial changed,” etc.; and the ultimate question is, was the trial commenced, within the meaning of the statute, when the issue of law raised by the motion to the answer was heard and determined by the court? We think the question must be answered affirmatively. Section 3649 of the Code defines a trial as the “ judicial examination of the issues in an action, whether they be issues of law or of fact.”’ And this means a judicial examination of an issue of law raised by a demurrer or plea. Mathews v. Clayton County, 79 Iowa, 510. Indeed, the statute (Code, section 3647) says that an issue arises in the pleadings where a conclusion of law is. maintained by one party and controverted by the
The judgment is affirmed.