Burke v. Mayall

• Court: Supreme Court of Minnesota (US)
• Writing for the Court: Berry
• Citation: 10 Minn. 226
• Decision Date: 01 January 1865
• Parties: CATHARINE BURKE vs. JAMES H. MAYALL et al.

10 Minn. 226 CATHARINE BURKE
vs.
JAMES H. MAYALL et al. Supreme Court of Minnesota.

Appeal from order of district court, Hennepin County.

Points and authorities for appellants: —

The affidavit upon which the motion for change of venue was based, showing clearly a state of facts in relation to the conduct of the judge towards the appellants totally incompatible and inconsistent with an unprejudiced and impartial state of mind on his part, and alleging besides that the appellants feared and believed that they would not receive a fair and impartial trial before him, on account of his ill-will and prejudice, and that they believed that his prejudice and ill-will against them were so great that they would be unsafe in submitting and going to a trial before him, entitled them to a change of venue; and it was error to deny the granting of it. McGoon v. Little, 7 Ill. 42, cited in 7 U. S. Digest, 479; Clark v. The People, 2 Ill. 117.

Page 227

Points and authorities for respondent: —

1. The affidavit to procure a change of venue is wholly insufficient in not stating any facts upon which the charge of prejudice can be predicated. Prejudice will not be presumed from an erroneous decision; neither is an erroneous decision ground for a change of venue. 3 Minn. [274]; Pub. Stat. 537, §§ 1, 2.

2. To warrant a change of venue on account of the prejudice of a judge, substantially the same facts must be shown as would constitute a good ground of challenge to a juror for bias, actual or implied. The object of the statute is to guard against the danger of a partial trial, and not to regulate the place of trial by the whims, caprices, or insane apprehensions, of parties. Pub. Stat. 774, §§ 22, 23.

L. M. Sewart, for appellants.

F. R. E. Cornell, for respondent.

BERRY, J.

The motion for a change of venue in this action, made by the appellant in the court below, purports to be based on prejudice and ill-will on the part of the judge of the district court.

Our statute regulating this subject, found upon page 537, Pub. Stat. §§ 44, 45, provides that a party may apply for a change of venue by petition, setting forth the cause of the application, and "accompanied by an affidavit verifying the facts stated in the petition." From the language of the statute requiring a statement of facts, as well as from the construction heretofore put upon the statute by this court, in Ex Parte Gold T. Curtis, 3 Minn. [274], it would seem that the general charges and...