Eckles v. Kinney

Stoqkton, J. The first assignment for error, is, that the District Court took cognizance of the cause, after an order had been made, changing the venue to the county of Warren. This cognizance, it is claimed, was assumed by the District Court : 1st. By ordering the defendant to give bond to secure the plaintiff in the additional' costs to be incurred by the change of venue, after the order for the change of venue had been entered. 2d. By re-docketing the cause at a subsequent term, and trying it. 1. As to the first point, the court may, at the same term, reconsider the motion for a change of venue, and grant the same on such conditions only, as are allowed by law, and are in the discretion of the court. The costs occasioned by the change of venue, are to be paid by the applicant, and not taxed as part of the costs of the cause. The court may, [541] as a condition of allowing tbe order for tbe change of venue, order that such costs shall be paid into court. But we do not think that the court can, after a change of venue has' been allowed, order the applicant to give to the adverse party, a bond to secure him in the additional costs to be' incurred by such change of venue. There -is no law authorizing the court to make such requirement. 2. Although the defendant, after the order for the change of venue had been made, might well object to any order being made at a subsequent term to re-docket the cause; yet, as it appears that he made no objection in the case, and appeared in court by his attorneys, and went to trial, he cannot now assign the ruling of the District Court for error. 3. The second assignment of error, we think, is well taken. The affidavit states that, as defendant verily believes “tthe inhabitants of the county of Boone are so prejudiced against him, that he cannot expect an impartial trial in said county.” This is in the words of the statute. Code, § 1706. Section 1708 of the Code, which limits the party to one change of venue, does not apply in this case, because, if for no other reason, the party had not in reality had a change of venue. Judgment reversed.