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8 Iowa 77

Berner v. Frazier

Supreme Court of Iowa

Decided April 5, 1859

Supreme Court of Iowa · decided 1859-04-05

Berner sued Erazier in an action of trespass before a justice of the peace. Before the jury were sworn, or the trial commenced, the defendant filed his affidavit, and moved the court for a change of venue, on the alleged ground that the justice of the peace was so prejudiced against him, that he could not obtain justice before him. The motion was overruled.

Decided 1859-04-05

Stockton, J.

¶1If the only error in the proceeding before the justice, had been in his allowing interest on the judgment in favor of the plaintiff, at the rate of ten per centum per annum, the ruling of the district court in remanding the cause, with directions to the justice to strike out the ten per cent, interest, would have been proper enough. But the defendant was entitled to a change of venue, on the motion and affidavit filed by him ; and the court should have reversed the judgment of the justice, and remanded the cause, with directions to him to allow the change of venue as prayed for by defendant.. See Act of January 21, 1852, sec. 1 ; Session Acts, 91; Marshall & McKee v. Kinney, 1 Iowa, 580; Lyne v. Hoyle, 2 G. Greene, 136.

¶2The judgment of the district court is reversed, and the *79cause remanded, with directions to reverse the judgment of the justice, and remand the cause to him, with directions to allow the change of .venue.

¶3Judgment reversed.

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