Schultz v. Young

• Decision Date: 24 July 1933
• Docket Number: No. 3830.,3830.
• Citation: 37 N.M. 427,24 P.2d 276
• Parties: SCHULTZv.YOUNG et al.
• Court: New Mexico Supreme Court

37 N.M. 427

24 P.2d 276

SCHULTZ

v.YOUNG et al.

No. 3830.

Supreme Court of New Mexico.

July 24, 1933.

Appeal from District Court, Chavez County; G. A. Richardson, Judge.

Action by Paul G. Schultz, administrator of the estate of William H. Taylor, deceased, against Mrs. M. T. Young and another and a cross-complaint by defendants. Judgment for plaintiff, and defendants appeal.

Reversed and remanded, with directions.

It is not error for the court to refuse requests to charge which were substantially covered by the instructions given.

G. L. Reese, Sr., and J. C. Gilbert, both of Roswell, for appellants.

L. O. Fullen, of Roswell, for appellee.

HUDSPETH, Justice.

This is an action in ejectment brought by appellee, administrator of the estate of William H. Taylor, deceased, for a tract of land in Roswell of which he claims that Taylor died seised. Appellants deny appellee's claim and, alleging that Mrs. Young is the owner of the premises in question, seek, by cross-complaint, to have title quieted in her. From a verdict and judgment in favor of appellee, appellants prosecute this appeal.

The first point relied upon by appellants for reversal is that the trial court erred in overruling defendants' motion for a change of venue, and in forcing them to trial in Chavez county.

Section 147-105 of the New Mexico Statutes, 1929 Compilation, provides that: “The venue in all cases, both civil and criminal shall be changed, upon motion, to some county free from exception whenever the judge is interested in the result of such case, or is related to, or has been counsel for either party or when the party moving for a change shall file in the case an affidavit of himself, his agent or attorney that he believes such party cannot obtain a fair trial in the county wherein the cause is then pending, either because the adverse party has undue influence over the minds of the inhabitants of such county, or the inhabitants of such county are prejudiced against such party, or because by reason of public excitement or local prejudice in such county in regard to the case or the questions involved therein, an impartial jury cannot be obtained in such county to try the same or for any other cause stated in such affidavit; Provided, that any party in either civil or criminal cases at issue that desires a change of venue from the county in which said case is pending shall file his application for a change of venue on or before the first day of any regular or special term of court. Provided further, that if the application for change of venue if filed in vacation, five days' notice of the time and place of presenting the motion must be given to the opposite party or his attorney.”

Section 147-106 provides: “Upon the filing of a motion for change of venue, the court may require evidence in support thereof, and upon hearing thereon shall make findings and either grant or over-rule said motion.”

Defendants' verified petition for a change of venue stated: “That defendants believe that they cannot obtain a fair trial in Chavez County wherein said cause is pending because the inhabitants of said County are prejudiced against the defendants; and that by reason of local prejudice in said county in regard to the case and the questions involved therein, an impartial jury cannot be obtained in said county to try the same.”

At the hearing on the motion appellants tendered proof of witnesses in support of the allegation of prejudice, but this tender was rejected and the motion denied, apparently on the grounds that the affidavit was insufficient to support a change and that the hearing of evidence on a motion for a change of venue was entirely within the discretion of the trial court.

Appellants contend that a petition and affidavit merely stating, in the language of the statute, that movants believe that they will not be able to secure a fair trial in the county wherein the cause is pending, on account of the prejudice of the inhabitants of such county, is sufficient; that it need not set out any of the facts or circumstances which give rise to the belief sworn to; that if a tender of proof of such prejudice and of the impossibility of securing a fair trial is made and rejected, the statements of the petition and affidavit become conclusive upon the court, and section 147-105 then makes it mandatory for the trial court to grant a change of venue.

We consider first the question of the sufficiency of the affidavit.

Although the authorities are not in entire harmony, there is considerable support for the view that, under statutes specifying prejudice as a ground for securing a change of venue, the movant need not set out in his moving affidavit the facts and circumstances upon which the belief of prejudice is based. See Huffman v. State, 66 Ind. App. 105, 117 N. E. 874; Wheeler v. City of Indianapolis, 201 Ind. 415, 166 N. E. 433, 175 N. E. 15; Hay v. Reed, 93 Ind. App. 592, 178 N. E. 873; Preston Nat. Bank v. Wayne Circuit Judge, 142 Mich. 272, 105 N. W. 757; Taylor v. Gardiner, 11 R. I. 182; State v. Yager, 250 Mo. 388, 157 S. W. 557, 558; Hunt v. State, 27 Ohio Cir. Ct. R. 16; cf. Newcomb-Buchanan Co. v. Baskett, 14 Bush (Ky.) 658, 659.

In Taylor v. Gardiner, supra, the court said in answer to an objection raised to the form of a petition for a change of venue: “The petition alleges that ‘by reason of local prejudice and the feeling entertained by the people of said county (i. e. Bristol County), he (i. e. the petitioner) cannot have a full, fair, and impartial trial in said county.’ The objection is that the petition should set forth the particular facts going to show the existence of the prejudice or feeling complained of. We do not think the objection is valid. The fact that the petitioner cannot, by reason of local prejudice, have a fair trial in Bristol County, is the fact to be proved; and it is enough that the petition alleges the fact to be proved without stating in detail the evidence to be given or the particular facts to be shown in proof of it.”

The reason for the rule dispensing with the necessity for particularity of statement in motions based upon prejudice is well stated in Hunt v. State, supra, as follows: “It may be possible to set forth specifically the facts constituting interest, or the facts constituting relationship, or some other facts, (perhaps most other facts) disqualifying a judge, but how can one state specifically the facts constituting bias or prejudice? Bias or prejudice is a state of mind like love, anger or fear. It is not only an ultimate fact, but it is a primary, elementary and initial fact. It will be observed that the rule does not require that the affidavit shall state wherein or in what respect the judge is prejudiced, nor that the affidavit shall state the evidences or manifestations of such prejudice, or the causes, or the supposed causes thereof, but that the constituent facts of the state of mind called ‘bias' or ‘prejudice’ shall be stated.”

Appellee, arguing the insufficiency of the affidavit filed in the case at bar, cites Lady Franklin Mining Co. v. Delaney, 4 N. M. 39, 12 P. 628. The statute construed in that case made provision for a change of venue “in any case in which it shall appear that either party cannot have justice done him at a trial in the county in which such case is then pending” (Comp. Laws 1884, § 1833). The territorial court held that a moving affidavit which did not set out facts sustaining affiant's stated belief that he could not have a fair trial within the county was insufficient. Although the reasoning in that case is eminently sound, we do not believe that it can be applied here. Under the practice at the time of that case, the affidavit performed the twofold function of instituting the proceeding for a change of venue and of establishing the right to a change of venue. Under the statutes applicable to the case at bar, however, provision is made for establishing the existence of the right by other means. For this reason, therefore, and in view of the difficulty of alleging prejudice in other than a very general manner, we hold that a petitioning affidavit merely stating, in the language of the statute, that the movant believes that a fair trial cannot be had in the county wherein the case is then pending, on account of local prejudice, is sufficient to entitle a party so moving to require the court to determine whether or not such ultimate fact alleged is true.

This leads us to a consideration of whether the trial court can deny a motion for a change of venue based upon a sufficient affidavit of prejudice without hearing evidence in support thereof.

Appellee argues that the word “may,” in section 147-106, indicates that the hearing of evidence is permissive and not mandatory. The contention is that section 147-106 gives the trial judge power to require evidence in support of the believed facts alleged in the moving papers, but that it imposes no duty upon him to exercise this power, and that he may either grant or deny a motion without hearing evidence if, in his opinion, evidence is not necessary for a determination.

The venue statutes which sections 147-105 and 147-106 of the 1929 Compilation superseded required that an affidavit of a party moving for a change of venue be supported by those of two disinterested persons “that they believe the facts therein stated are true” (Code 1915, § 5573). By a series of decisions involving changes of venue sought under that statute it became settled that the trial judge might require the movant to produce the supporting witnesses to the movant's affidavit that he could not have a fair trial in the county, and that he might examine them as to their interest and knowledge. Territory v. Gonzales, 11 N. M. 301, 68 P. 925; Territory v. Emilio, 14 N. M. 147, 89 P. 239; Territory v. Cheney, 16 N. M. 476, 120 P. 335; State v. Ancheta, 20 N. M. 19, 145 P. 1086; State v. Buck, 33 N. M. 334, 266 P. 917. State v. Nabors, 32...