Mayer v. Woodbury

Wright, J. 1. The facts stated in the affidavit of defendants’ counsel, for the change of venue, are fully rebutted by the counter affidavits, and there was no error in overruling the motion at that time. In response to defendant’s showing, which, for the most part, is the statement of mere information and belief, we have the affidavit of plaintiff and his attorney, which certainly makes it reasonably manifest that the note was assigned in good faith, for a valuable consideration, and not for the mere purpose of suing defendant in Johnson county. And while we adhere to all that is said on this subject in the Troy Portable Grain Mill Company v. Bowen & Co., 7 Iowa, 465, we still conclude that in this case the court below ruled correctly, for the facts developed do not show that Strahm assigned the note to enable the plaintiff to sue in a wrong or improper county. 2. We cannot see how defendant was prejudiced by the rejection of the proposed amendment to his answer. If treated as a defense to the action, then the same matter was already pleaded, for defendant had already denied the assignment and ownership of the note. Not only so, but the note was not negotiable, and defendant had the privilege of making every defense that he could have made, if the action had been commenced in Strahm’s name. Then if the amendment is to be treated as an effort to change the venue, under the facts as developed by Strahm’s cross-examination, the an^ver is that the court, in the exercise of a sound discretion, might well conclude that the application was too late. It was. made after the party, upon as 59 full a showing as he desired to make, had been overruled in bis application, 'after tbe trial was commenced, and tbe testimony substantially concluded. And finally, if it be treated as a plea in bar, upon tbe ground that tbe action was not prosecuted in tbe name of tbe real party in interest, tbe answer is, that it was unnecessary and immaterial, for tbe defendant could claim tbe advantage of all tbe testimony be could obtain on this subject, under tbe issue already joined. If a proposed amendment is but a substantial repetition of a former pleading, tbe court may, in its discretion, reject it. (Harvey v. Spaulding, 7 Iowa, 424.) Not only so, but the matter stated would be no bar to tbe action. Farwell v. Tyler, 5 Iowa, 535; Allen v. Newberry, 8 Id., 65; Howey v. Willtrout, 10 Id., 105 ; McLott, Corbin & White v. Savery and Savery, 11 Id., 323. Affirmed.