
    John N. Moyers, Appellee, v. Council Bluffs Nursery Company and D. J. Fogarty, Appellants.
    Actions: removal to proper county: costs. Code, Section 3504, contemplates that a defendant sued in the wrong county shall recover only for his trouble and expense in moving for a change to the proper county, and not all his personal expenses, time occupied and attorney’s fees in defending the case in the trial court and on appeal; and the allowance is largely discretionary with the court which will not be disturbed on appeal unless an abuse of such discretion is shown.
    
      Appeal from Boone District Court.— Hon. W. B. Evans, Judge.
    Tuesday, June 5, 1906.
    Rehearing denied, Thursday, October 25, 1906.
    The opinion states the case.—
    
      Affirmed.
    
    
      John P. Organ and Stevens & Fry, for appellants.
    
      Dyer & Hull, for appellee.
   Weaver, J.

— This action having been brought in the district court of Boone county, Iowa, the defendants appeared thereto and moved to transfer the cause to the district court of Pottawattamie county for trial, on the ground that they were residents of the latter county and the contract sued upon was not one giving jurisdiction in the former county. This motion was overruled, and the cause proceeded to trial on its merits, resulting in a judgment for the plaintiff. On appeal to this court the .judgment was reversed; it being held that the motion to transfer to Pottawattamie county should have been sustained. Moyers v. Nursery Co., 125 Iowa, 672. Upon being remanded to tbe district court, defendants renewed their motion to transfer the cause, and for an allowance for expenses and atttorney’s fees incurred by them in preparing and submitting the motion for change of place of trial, $75; for atttorney’s fees in defending the action upon the trial in Boone county, $263.05; for personal expenses of Fogarty in attending the trial in Boone, $103.40; and for attorney’s fees in prosecuting the appeal to the Supreme Court, $300. The trial court sustained the motion to transfer, and assessed in defendant’s favor, under Code, section 3504, the sum of $75 as “ compensation for their trouble and expense in attending at the wrong county.” Other items claimed were disallowed, and defendants appeal.

The ruling was correct. The statute cannot be construed to mean that a person sued in a wrong county may recover, not only for his trouble and expense in moving for a change to the proper county, but in addition thereto recover compensation for all his time, trouble, and expense in defending the case upon its merits. In the absence of any showing to the contrary, these latter items cannot be presumed to be any greater in one county than another. Under ordinary circumstances the only penalty assessed for prosecuting an unsuccessful action in the courts is the payment of taxable costs. The statutory provision here in question is not intended to change this rule, except so far as to entitle the party sued in a wrong county to recover for the extraordinary expense and trouble in attending at such county, and securing or attempting to secure a change to the proper jurisdiction. To hold that in addition thereto he may recover for all personal expenses incurred, time occupied, and fees paid in defending the case in. the trial court and on appeal to this court, is entirely unwarranted by any fair interpretation of the statute and out of harmony with the general policy governing the practice in this state. Moreover the assessment of compensation in these cases is largely within the discretion of the trial court. The statute does not undertake to provide a schedule, or a maximum or minimum, of allowances. The trial" court is in position to know and appreciate the situation as we cannot, and in the absence of anything clearly indicating an abuse of that discretion we are not disposed to interfere. Care should at all times be taken that the compensation provided by the statute is not made a means of profit or extravagant or oppressive charges. The claims in the present case are perhaps not open to that criticism, but they are at least suggestive of the possibilities involved in the rule for which the appellants contend, and emphasize the propriety of refusing to extend the statute -to cover anything not fairly expressed by its terms.

Without going into details we are satisfied that the allowance of $J5 made by the district court is sufficient to fairly compensate the defendants for all trouble and expense incurred in presenting their claim for change in the place of trial, and, as we hold that the other claims set up are not recoverable, it follows that the judgment appealed from must be, and it is, affirmed.  