Advance Veneer And Lumber Company v. Hornaday

• Decision Date: 13 December 1911
• Docket Number: 7,347
• Citation: 96 N.E. 784,49 Ind.App. 83
• Parties: ADVANCE VENEER AND LUMBER COMPANY v. HORNADAY
• Court: Indiana Appellate Court

96 N.E. 784

49 Ind.App. 83

ADVANCE VENEER AND LUMBER COMPANY v. HORNADAY

No. 7,347

Court of Appeals of Indiana

December 13, 1911

From Hendricks Circuit Court; Thomas J. Cofer, Special Judge.

Action by Charles P. Hornaday against the Advance Veneer and Lumber Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Barrett & Barrett and Lew Wallace, for appellant.

Brill & Harvey, for appellee.

OPINION

MYERS, J.

Appellee by a contract in writing dated April 25, 1906, sold to appellant "the timber of every kind, size and character" within a certain boundary on his land in Hendricks county. It was stipulated that appellant was to remove all said timber by August 1, 1906, and for that purpose it was at all times to have ingress to and egress from said land. It was further agreed that appellant was to pile all brush and limbs left from said timber, "such piling of brush and limbs to render the burning thereof easily accomplished." The underbrush was not to be cut or piled.

Appellee alleged that he fully performed the contract on his part. The alleged breaches on the part of appellant were (1) failing and refusing to remove said timber within the time named in the contract, and in allowing large quantities to lie upon the land, thereby rendering it unfit for cultivation; (2) failing and refusing to pile the brush and limbs left from said timber. Appellee alleged that because of said defaults he was prevented from using and cultivating said land during the years 1907 and 1908, and that he was obliged, at his own cost and expense, to remove said timber and to pile said brush and limbs. Damages were demanded.

There was an answer in three paragraphs. The first was a general denial, the second and third were addressed to so much of the complaint as counted on damages for failure to remove the timber on or before August 1, 1906. Each paragraph proceeded upon the theory that appellee had waived the time fixed in the contract for the removal of the timber, and that it was removed within the time agreed to by appellee. There was a reply in general denial, and a trial by jury, with a verdict and judgment in favor of appellee.

Appellant's motion for a new trial, assigning thirty reasons in support thereof, was overruled, and this ruling is assigned as error.

The first and second reasons in support of this motion are alleged error in the overruling of appellant's motions for a change of venue of the cause from Hendricks county. These rulings were properly assigned as reasons for a new trial. Shoemaker v. Smith (1881), 74 Ind. 71; Town of Knox v. Golding (1910), 46 Ind.App. 634, 91 N.E. 857.

This action was commenced in the Superior Court of Marion County, January 14, 1908. On February 14, 1908 appellant answered the complaint by a general denial. On February 25 appellee filed his motion and affidavit for a change of venue of the cause from Marion county, which the court sustained, and thereupon sent the cause to Hendricks county. In the brief it is said that appellee failed to perfect the change within the time allowed, but as appellant makes no point on this part of the proceedings, we will give it no further attention.

With reference to appellant's motions for a change of venue from Hendricks county, each affidavit stated the facts required by statute. § 422 subd. 3 Burns 1908, § 412 R. S. 1881. These affidavits were made by appellant's secretary, and while they state additional facts, they are unimportant, in view of other facts disclosed by the record. On March 18, 1908, the transcript on change of venue from the Superior Court of Marion County was filed in the office of the clerk of the Hendricks circuit court. Appellant admits that it knew on June 1 that this action was pending in said court. It was then fully informed regarding appellee's undue influence over the citizens of that county, and that an odium attached to appellant, and to its defense, on account of local prejudice. It appears that the cause was set for trial on June 19, but on a motion by appellant it was continued, and by the court reset for trial on June 22. In the meantime, on June 20, the first affidavit to change the venue was filed and overruled, and at the request of appellant the cause was postponed until June 26, when, on appellant's application, the cause was continued indefinitely.

The reasons given for not filing the motion and affidavit at an earlier date are without merit. The attorneys who appeared for appellant and answered the complaint in the Superior Court of Marion County, continued to represent it throughout all the proceedings had in the case, and their authority so to do has at no time been questioned or denied. So that any claim on the part of appellant's secretary, that he had no knowledge of the pending action prior to June 1, or that his instructions to the attorneys after that time had not been followed, can have but little, if any, weight in considering the present question. In the absence of a showing to the contrary, we must assume that the attorneys had authority from appellant to appear, and that they acted throughout the case in the interest of their client, using their best judgment, and following authentic instructions, although not in line with the individual judgment and directions given by the secretary. While we adhere strictly to the rule that courts have no discretion in granting a change of venue, where the necessary facts are made to appear by a proper affidavit, yet the party who would avail himself of this statutory provision must promptly apply to the court for such change after he discovers that such facts do exist, if he would avoid a rule of court limiting the time within which such application must be made.

In this case appellant knew that appellee lived in Hendricks county, and for many days prior to the day the cause was set for trial appellant was apprised of all the facts. It further appears that for months prior to June 19 appellant gave but little attention to the court proceedings relative to this cause. We must indulge every reasonable presumption in favor of the rulings of the trial court, and keep in mind that courts have inherent power to adopt and enforce reasonable rules for conducting the business therein, and such rules, when not repugnant to the laws of the State, are binding alike on the court and litigants. Magnuson v. Billings (1899), 152 Ind. 177, 52 N.E. 803; Rooker v. Bruce (1908), 171 Ind. 86, 85 N.E. 351; State v. Van Cleave (1902), 157 Ind. 608, 62 N.E. 446. When the first of these rulings was made, it does not appear that the Hendricks Circuit Court had no rule in force requiring the applicant to make the application for such change at least one day before the day the cause was set for trial. If there was such a rule, it was reasonable (Vail v. McKernan [1863], 21 Ind. 421; Hoke v. Applegate [1884], 92 Ind. 570; Jones v. Rittenhouse [1882], 87 Ind. 348), and the facts disclosed by the record, and undenied, would justify the conclusion that appellant had notice of the causes relied on for the change long before the first affidavit was filed, and one day before the case was to be called for trial. If so, the motion was not seasonably made, and the court was justified in refusing to exclude the application of its rule. Bernhamer v. State (1890), 123 Ind. 577, 24 N.E. 509; Goodwin v. Bentley (1903), 30 Ind.App. 477, 66 N.E. 496.

On September 7 the second affidavit was filed. It affirmatively appears from this affidavit that under the rules then in force in the Hendricks Circuit Court, the time given in which to make applications for changes of venue had passed. Appellant does not claim that it did not know of the grounds entitling it to a change in time to apply therefor in accordance with the time limit given by the rules of the court, but it is stated that neither it nor its attorneys had any knowledge of any rule of said court relating to changes of venue until it appeared therein, nor did either have actual knowledge that the venue of said cause had been changed to that court until after the time limited by said rule for the filing of such affidavits in such cases had elapsed.

The excuse offered for this lack of knowledge is that at the time the motion for the change from the Marion Superior Court was filed, and sustained, appellant was not actually in court, either in person or by attorney, and had not been served with notice that such motion had been filed. That the court, in sustaining the motion, correctly ruled, is not questioned. Appellant had entered its full appearance, and thereafter it must be regarded as being in court for all intents and purposes of the case as made by the complaint, and was bound to take notice of the law authorizing the plaintiff to apply for a change of venue from the judge or from the county. The change of venue to the Hendricks Circuit Court carried with it appellant's appearance in that court, and from that time on it must be regarded as subject to its rules unless the facts or peculiar circumstances appearing will relieve it from their operation. The reasons given by appellant for not knowing of the rule, and for not filing its motion within the time fixed by such rule, amounts to no more nor less than inexcusable neglect, and cannot be allowed to set aside a rule having the force and effect of law. Rout v. Ninde (1887), 111 Ind. 597, 13 N.E. 107; Moulder v. Kempff (1888), 115 Ind. 459, 17 N.E. 906; Magnuson v. Billings, supra; City of Columbus v. Strassner (1894), 138 Ind. 301, 34 N.E. 5.

It has been held that where a party did not know of the cause for a change of venue until after the time limited by a rule of court for filing his affidavit therefor, he would be entitled to a change, notwithstanding...