Walsh v. Ray

Mr. Chief Justice Walker delivered the opinion of the Court: A petition for a change of venue was filed in the court below, by appellant. It stated that the judges of the Superior Court were all prejudiced against petitioner, and in favor of plaintiff in the case. That he feared that he would be unable to obtain a fair and impartial trial of the cause, in that court. It also stated that the existence of such prejudice in the minds of the judges, first came to his knowledge on the day the petition was filed, and the motion was entered. It prayed a change of venue to some court where such prejudice did not exist, pursuant to the provisions of the statute. Appellee’s attorneys were served •with notice of the intended application, and that it would be made at two o’.clock of the same day. It was made in pursuance of the notice, but it was overruled by the court, to which an exception was taken. This petition, the notice and the motion for a change of venue, seem to fully conform to the act of 1845, entitled “Venue.” And when its requirements have been observed, its mandate is peremptory. The court in such a case has no discretion. A party bringing himself within its provisions is entitled to its benefits, and the court must grant the change of venue. The 19th section of the act of 1853, (Scates’ Comp. 273), vests that court with the right to determine whether a party, in a criminal case, is entitled to a change of venue; but it leaves the practice in civil cases as it was under the act of 1845. The court, below, therefore, erred in overruling the motion, and the judgment must be reversed and and the cause remanded. Judgment reversed.