Ogle v. Edwards

Olds, J. This is an action brought by the appellee, as administrator, for the foreclosure of a mortgage. The only question presented and discussed arises on the overruling of a motion for a change of venue from the county. After the cause tyas set for trial, and seven days before the day set for trial, the appellant, Alfred M. Ogle, moved for a change of venu* from the county, and filed his affidavit in support of the motion, alleging that he could not have a fair trial in said county of Greene, for the reason that the said plaintiff had an undue influence over the citizens of said county, and further alleging that he did not discover said undue influence until after the cause was set for trial. [359] At the time of the filing of said affidavit and moving for the change of venue, there was in force a rule of said (3-reene Circuit Court providing that “ all applications for a change of venue from the county shall he made by filing the necessary affidavit, and calling the judge’s attention thereto in open court, at least ten days before the day on which such cause is set for hearing.” The record shows that “the court overruled said motion on the grounds that said cause had been set for trial on the 9th day of March, 1891, the same being the twenty-fifth judicial day of said term, and for that reason the motion came too late under the rule of the court.” The law gives a party the right to have a change of venue for various reasons, among which is the cause stated in the affidavit. Section 412, R. S. 1881. The mode and time of making the application may he regulated by a rule of court, hut such right of the party can not he abrogated or obstructed in such a way as to prevent the exercise of it by a rule of court, for the statutory right is paramount to any rule. The party would be hound to take notice of the rules' of the court in which his cause was pending, and if he had knowledge of the facts upon which his application for a change of venue was based, in time to have complied with the rule, his failure to comply with it would waive his right to the change; hut if he did not know the facts in time to have done so, he could not be required to comply with the rule, and he can not he held to have waived his right, when he did not know that the facts existed upon which his right is based. The decision in the case of Bernhamer v. State, 123 Ind. 577, is, as we think, decisive of the question here presented. In that case a rule of court prescribed the time for filing affidavits for changes of venue, and the affiant (the party) alleged in his affidavit that he did not know of the cause for a change until after the time for filing [360] under the rule, and it was held sufficient. In that case it was said: “ The law does not require impossibilities, and as the appellant had no knowledge of the bias and prejudice, on account of which he sought a change of judge, in time to make his application within the time prescribed by the rule of court, it must be held that the want of such knowledge was sufficient cause for not making it sooner.” To hold that a party is hound by the rule when he had no knowledge of the facts in time to comply with it, would he to hold that a rule of court could take from the party a right given him by the statute, unless he possessed the information of the existence of the facts in time to comply with the rule, and likewise to deprive him of his right if the cause for the change originated after the time for filing his application under the rule. This would he recognizing a rule of court as paramount to a valid statute. Other decisions of this court support the same theory. In the case of Shoemaker v. Smith, 74 Ind. 71, the affidavit used the same language as the one under consideration, that the affiant “did not discover” the cause for a change until after the time for complying with the rule, and it was held sufficient. See Krutz v. Howard, 70 Ind. 174; Lott v. State, 122 Ind. 393. "We are aware that there are decisions of this court holding a- contrary doctrine. In Ringgenberg v. Hartman, 102 Ind. 537, it was held that the affidavit was insufficient, for the reason that it failed to show the exercise of diligence, and that decision is based on the decision of Witz v. Spencer, 51 Ind. 253, holding the same doctrine ; hut they are in conflict with the decisions we have cited, and in so far as they are in conflict with this opinion they are overruled. The presumption is that the judge of the court and the citizens of the county are impartial and free from prejudice against the party, and he may rely upon the impartiality of the. judge and the citizens of the [361] county, and lie is not bound to go about in advance of tbe trial making inquiry as to the status of the mind of the judge or the prejudices existing among the people, or as to whether or not the adverse party has prejudiced or influenced them against him; and if he makes his application seasonably after he discovers that such facts do exist, his application is in time, and he can not be deprived of his right under the statute. The reasonable presumption is that the court and the citizens are ■ fair and impartial, and that every party can have a fair trial in the court in which his cause is pending, and a party may and has the right to rely upon such presumption, and the existence of prejudice or undue influence is not a matter about which he is bound to make inquiry, but may exercise his right to a chango whenever it is made known to him or comes to his knowledge. The very fact that a party was making such inquiry and questioning the integrity of the court, or a probable or a possible juror, might create a prejudice •against him. ~We are aware that it is sometimes claimed that the right of a change of venue is abused and exercised for the purpose of delay, in cases where no real cause ifn fact "exists; but this-is a matter we can not consider. The right is given alike to all parties litigant, and the honest litigant can not be deprived of the right, when it in fact exists, because a dishonest litigant avails himself of the benefit of it by false swearing. If th,e law works injustice rather than justice, the remedy is with another department of government, and if wicked parties avail themselves of it by false swearing, they are liable to punishment. Filed January 12, 1893. The court erred in overruling the motion for a change of venue. The judgment is reversed, with instructions to grant a new trial.