Heshion v. Pressley

Howk, J. — This was an action of replevin by the appellant against the appellee to recover the possession of certain articles of personal property. In his verified complaint, the appellant alleged that he was the owner and entitled to the possession of the property described, of the aggregate value of $800.65; that the same had not been taken for a tax assessment or fine, pursuant to a statute, nor seized under an execution or attachment against the appellant’s property; but that said property had been wrongfully taken, and was un [491] lawfully detained by the appellee, at said Marion county. .Wherefore, etc. The appellee answered by a general denial of the complaint. The issues joined were tried by the court without a jury, and a finding was made for the appellee, the defendant below, and the value of the property assessed at one thousand dollars. . Over the appellant’s motion for a new trial, and his exception ■saved, the court rendered judgment that the property described in the complaint in this cause be returned to the appellee, and, if a return thereof can not be had, that the appellee recover of the appellant the sum of one thousand dollars, the value thereof, and his costs in this action expended. The only error properly assigned by the appellant, in this court, is the decision of the circuit court in overruling his motion for a new trial. The causes assigned by him for such new trial were as follows: 1. Because the finding of the court was contrary to law and evidence; 2. Because the finding was excessive and unsupported by the evidence; and, 3. Because the court erred in overruling the appellant’s motion for a change of venue. The only question presented and discussed by the appellant’s counsel, in their brief of this cause in this court, arises under the third cause assigned for a new trial, namely, the alleged error of the circuit court in overruling the appellant’s motion for a change of venue. This motion was founded upon and supported by the affidavit of one Patrick C. Leary, in substance, as follows: That he was the agent of the appellant, and was superintending the appellant’s store in the city of Indianapolis, and, for and on behalf of the appellant, who was at his home fourteen miles distant from said city of Indianapolis, where this suit was pending, and was unable to reach Marion county or make said affidavit in person in time for the calling of this cause, on Friday morning the 27th inst., and for the further reason that the appellant was in [492] formed by his attorney that the case would not be reached for trial on said day, as there were many causes ahead of it, and by reason of the appellant’s absence, the affiant therefore, for and in his behalf, said that the appellant could not obtain a fair and impartial trial of said cause, in said county of Marion, by reason of the appellee’s undue influence over the citizens of said county; that the appellant had a good, meritorious cause of action, consisting of a claim for a stock of goods, of which he was the rightful owner, and which was seized by the appellee without right; and the affiant further said, that the appellant could not safely go into this trial before the Hon. Joshua G. Adams, judge of said court, by reason of the prejudice existing in the mind of said judge against the appellant Charles Heshion. Wherefore the appellant prayed a change of venue from said court and judge. * In section 207 of the code, as amended by an act approved March 5th, 1877, it is provided, that “The court in term, or the judge thereof in vacation, may change the venue of any civil action, upon the application of either party made upon affidavit showing one or more of the following causes: * “ Third. That the opposite party has an undue influence over the citizens of the county,” etc. “Seventh. When either party shall make and file an affidavit of the bias, prejudice or interest of the judge before whom the said cause is pending, the said court shall grant a change of venue.” In this case, it is manifest from the language of the affidavit, the substance of which we have given, that it was intended to make the application for the change of venue for two of the statutory causes therefor, namely: 1. The ap- pellee’s undue influence over the citizens of the county; and 2. The prejudice of the judge before whom the cause was pending. In so far as the second of these causes is concerned, it will be observed that the statute explicitly requires the application to be made upon the affidavit of a party to the suit. In Stevens v. Burr, 61 Ind. 464, an application had been made [493] for a change from the judge of the court, upon the affidavit of the attorney of the plaintiff, alleging the bias and prejudice of the judge; and it was held by this court, that no error was committed in overruling such application. The court said: “ Where the application is made on the ground stated in the affidavit in this case, the affidavit must be both made and filed by the party. The language of the statute is ■explicit, and admits of no other construction. The right to a change depends upon the statute, and the party asking it must take it on the terms prescribed by the statute, or not at all.” This construction of the seventh clause of said section • 207 of the code disposes of the appellant’s application, in the case at bar, for a change from the judge. The court did not err in overruling the application for a change from the judge. Did the court err in overruling the appellant’s motion for,a change of venue of this cause from Marion county ? This is the only remaining question for our decision. We are of the opinion that this question ought to be, and must be, answered in the affirmative. In coming to this conclusion, we are not influenced in the slightest degree by the reasons attempted to be given, in the affidavit filed in this case, for the failure of the appellant, in person, to make and file such affidavit, for these reasons seem to us to be inconclusive and unsatisfactory. But the letter of the statute does not require that the application for a change of venue should be made upon the affidavit of a party to the suit, except in the single instance of an application for a change from the judge, on account of his “bias, prejudice, or interest.” It seems to us that this exception, of itself, .tends strongly to show the legislative intent, that in all other eases, not embraced in the exception, the application for the change of venue might be made upon the affidavit of any person, whether a party to the .suit or not, showing the necessary facts. This point the court declined to decide in Stevens v. Burr, supra, but the conclusion we have reached follows necessarily from the ar [494] gument of the opinion in that case. The court said, arguendo .- “ It will be seen that the general provision is, that a change may be granted, ‘ upon the application of either party made-upon affidavit/ without specifying by whom the affidávit is to-be made. But when the seventh specification is reached, providing for a change on the ground of the bias, prejudice, etc., of the judge, the affidavit is required to be both made and filed by the party asking the change.” In Witter v. Taylor, 7 Ind. 110, in delivering the opinion of the court, Stuart, J., said: • “Applications for change of venue, in civil cases, are not addressed to the discretion of the court. Like surety to keep the peace, they are measured more by the feelings of the party making the application, than by any distinctive features which the court might recognize as a just ground of apprehension. If the affidavit is in substantial conformity to the statute, the change must be granted. The statute is explicit. The ‘may ’ as there used, is clearly imperative and not discretionary.” Shaw v. Hamilton, 10 Ind. 182; Shattuck v. Myers, 13 Ind. 46; Goldsby v. The State, 18 Ind. 1147. For the reasons given, we are of the opinion'that the court erred, in this case, in overruling the appellant’s motion to change the venue of the action from Marion county; and that, for this cause, a new trial ought to have been granted. The judgment is reversed, at the appellee’s costs, and the cause is remanded, with instructions to sustain the appellant’s-motion for a new trial, and for further proceedings not inconsistent with this opinion.