Brittain v. Monroe County

• Citation: 214 Pa. 648,63 A. 1076
• Decision Date: 09 April 1906
• Docket Number: 277
• Parties: Brittain, Appellant, v. Monroe County
• Court: Pennsylvania Supreme Court

63 A. 1076

214 Pa. 648

Brittain, Appellant, v. Monroe County

No. 277

Supreme Court of Pennsylvania

April 9, 1906

Argued March 5, 1906

Appeal, No. 277, Jan. T., 1905, by plaintiffs, from order of C.P. Monroe Co., Dec. T., 1904, No. 18, discharging rule to change venue in case of A. R. Brittain and Frank Reeder and Geo. F. Coffin, trading as Reeder & Coffin, v. Monroe County. Reversed.

Rule for change of venue.

The opinion of the Supreme Court states the case.

Error assigned was order discharging rule to change venue.

It appearing that the applicants for a change of venue had brought themselves within the provisions of the fourth paragraph of section one of the act of assembly, the sixth assignment of error is sustained and the order discharging the rule for a change of venue is reversed with directions to the court below to grant the change of venue as prayed for.

Frank Reeder, of Reeder & Coffin, with him A. R. Brittain, for appellant. -- The admission of any evidence tending to contradict the allegation that local prejudice exists, was objected to on the part of the applicants, and in overruling such objection the court was clearly in error.

The president judge was an interested party within the meaning of the act: Wright v. Crump, 2 Lord Raymond, 766; Cottle's App., 22 Mass. 483; Sigourney v Sibley, 38 Mass. 101; Pearce v. Atwood, 13 Mass. 324; Clark v. Lamb, 84 Mass. 396; Heilbron v. Campbell, 23 Pacific Repr. 122; Regina v. County of Wilts, 6 Mod. 307; Kendall v. City of Albia, 73 Iowa 241 (34 N.W. 833); Willoughby v. R.R. Co., 203 Pa. 243; Meyer v. San Diego, 121 Cal. 102 (53 Pac. Repr. 434); Wetzel v. State, 5 Tex. Civ. App. 17 (23 S.W. Repr. 825).

Harvey Huffman, with him W. B. Eilenberger, for appellee, cited Newlin's Petition, 123 Pa. 541; Philadelphia v. Ry. Co., 143 Pa. 444; Minneapolis v. Wilkin, 30 Minn. 140 (14 N.W. 581).

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT and ELKIN, JJ.

OPINION

MR. JUSTICE MESTREZAT:

In an opinion handed down herewith in Little v. Wyoming County, ante, p. 596, we have pointed out the proper practice in application for change of venue in civil cases under the Act of March 30, 1875, P.L. 35. Under that decision, the applicants in this case brought themselves within paragraph four of section one of the act, and were therefore entitled to a change of venue. That paragraph requires the court to order a change when the opposite party is a county, and "it shall appear by the oath of the party desiring such change of venue, that local prejudice exists, and that a fair trial cannot be had in such county." Here the defendant was the county of Monroe, and the plaintiffs each filed an affidavit "that local prejudice exists and that a fair trial cannot be had in said County." The plaintiffs having complied with this provision of the statute, the learned judge should have entered an order changing the venue.

The court below was clearly right in hearing evidence in support of and against the allegations in the petition that "a large number of inhabitants of Monroe county in which such cause is pending have an interest in the question involved therein, adverse to the plaintiffs." By this averment, the petitioners sought to bring their application within paragraph five of section one of the act. Section two empowers the court to change the venue only when "satisfied of the truth of the facts alleged" in the petition. It was, therefore, the duty of the court to ascertain the truth of the averment in the petition, that a large number of the inhabitants of the county have an interest in the question involved adverse to the applicants, and as to this fact the court was not compelled to accept as conclusive the affidavits of the applicants. Both parties should have been afforded an opportunity to produce testimony from which the court could determine the truth of the averments contained in the petition.

While the testimony offered by the county to show that no local prejudice existed was clearly incompetent and irrelevant, the objection to its admission, made by counsel of the applicants, "because under the act of 1875 there is no provision made for taking such testimony," was clearly untenable. The act requires the court to be "satisfied of the truth of the facts alleged," and, as we have just pointed out, the court may direct testimony to be taken to enable it to ascertain the facts. But the existence of local...