Advance Veneer & Lumber Co. v. Hornaday
| Decision Date | 13 December 1911 |
| Docket Number | No. 7,347.,7,347. |
| Citation | 96 N.E. 784,49 Ind.App. 83 |
| Court | Indiana Appellate Court |
| Parties | ADVANCE VENEER & LUMBER CO. v. HORNADAY. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Hendricks County; T. J. Cofer, Special Judge.
Action by Charles P. Hornaday against the Advance Veneer & Lumber Company. From a judgment for plaintiff, and an order overruling a motion for new trial, defendant appeals. Affirmed.Charles E. Barrett, Fred E. Barrett, and Lew Wallace, for appellant. George W. Brill and George C. Harvey, for appellee.
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 of said timber by August 1, 1906, and for that purpose it was to have ingress and egress at all times to said land. It was further agreed that appellant was to pile all brush and limbs left from timber, “such piling of brush and limbs to render the burning of same easily accomplished.” The underbrush was not to be cut or piled.
Appellee alleges 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 and permitting large quantities of the same to lie upon the land of appellee, thereby rendering it unfit for cultivation. (2) Failing and refusing to pile the brush and limbs left from said timber. That by reason of said defaults appellee was prevented from using and cultivating said land during the years 1907 and 1908; that he was required at his own cost and expense to remove said timber, and pile said brush and limbs, and damages were demanded.
Answer in three paragraphs. The first was a general denial; second and third were in answer to so much of the complaint as counted on damages for failure to remove the timber on or before August 1, 1906. Each of these paragraphs 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. Reply in general denial. Trial by jury; verdict and judgment in favor of appellee. Appellant's motion for a new trial, assigning 30 reasons in support thereof, was overruled, and this ruling is assigned as error.
[1] The first and second reasons in support of this motion are based on 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, 74 Ind. 71;Town of Knox v. Golding, 46 Ind. App. 634, 91 N. E. 857.
This action was commenced in the Marion superior court January 14, 1908. On February 14, 1908, appellant answered the complaint by a general denial. On February 25th 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 something is said along the line of appellee's failure 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. Section 422, cl. 3, Burns' 1908. These affidavits were made by the secretary of appellant, 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 Marion superior court was filed in the office of the clerk of the Hendricks circuit court. Appellant admits that it knew, on June 1st, that this action was pending in the Hendricks circuit 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 case was set for trial on June 19th, but on appellant's motion it was continued, and by the court reset for trial on June 22d. In the meantime (June 20th) the first affidavit to change the venue was filed and overruled, and at the request of appellant the cause was postponed and again reset for trial June 26th, when, on appellant's application, the cause was continued indefinitely.
[2][3] 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 Marion superior court 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 the secretary of appellant that he had no knowledge of the pending action prior to June 1st, or that his instructions to the attorneys after that time had not been followed, can have but little, if any, weight in the consideration of 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.
[4] 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 it was apprised of all the facts. It further appears that for months prior to June 19th the appellant gave but little, if any, 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, 152 Ind. 177, 52 N. E. 803;Rooker v. Bruce, 171 Ind. 86, 85 N. E. 351;State v. Van Cleave, 157 Ind. 608, 62 N. E. 446.
[5][6] 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, 21 Ind. 421;Hoke v. Applegate, 92 Ind. 570;Jones v. Rittenhouse, 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, 123 Ind. 577, 24 N. E. 509;Goodwin v. Bentley, 30 Ind. App. 477, 66 N. E. 496.
[7] On September 7th the second affidavit was filed. It affirmatively appears from this affidavit that under the rules of the Hendricks circuit court then in force 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 have applied therefor in accordance with the time limit given by the rules of the court; but it is stated that neither it nor of said court, relating to changes of venue, its attorneys had any knowledge of any rule 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 of filing the motion for the change from the Marion superior court, and the sustaining of that motion, appellant was not actually in court, either in person or by attorney, and had not been served with any notice of the filing of such motion. 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...
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