Baldwin v. Marygold

By the Oourt, Smith, J. The error complained of in this case is, the refusal of the County Court to [420] C^ange the venue on tlie petition of the plaintiff in who was plaintiff below. brought an action of assumpsit, founded on book account, against the defendant, before a justice of the peace of Calumet county, and obtained judgment for $57.19. The defendants appealed to the County Court. On the first day of the next term the plaintiff filed his petition and affidavit for a change of venue, on account of the prejudice of the judge. The petition was opposed by the defendant’s attorneys, who were then in court, the petition being presented in open court, on the ground that they had not had eight days’ notice of the petition. Seasonable notice is all that is required, and when a petition of this kind is presented in open court, in the presence of the attorney or counsel of the adverse party, it is sufficient notice of the filing. If time is desired to prepare for the hearing, it may doubtless be had on application. If the application be made in vacation, of course another kind of notice is necessary’ and what would be reasonable notice must depend upon the circumstances of the case. The statute of 1858, {Session laws, p. 51) is imperative upon the judge or court, and the venue should have been changed in accordance with the prayer of the petition, and with the provisions of the Statute. The court had no discretion in the premises and by proceeding afterwards to “ default” or non-suit the plaintiff, the court acted without authority, and the judgment is therefore erroneous. The judgment of the County Court is therefore reversed, and the cause remanded, with directions to the County Court to order a change of venue in accordance with the prayer of the petition.