Evans v. Evans

• Decision Date: 19 February 1886
• Citation: 105 Ind. 204,5 N.E. 24
• Parties: Evans v. Evans.
• Court: Indiana Supreme Court

105 Ind. 204

5 N.E. 24

Evans

v.Evans.¹

Supreme Court of Indiana.

Filed February 19, 1886.

Appeal from Kosciusko circuit court.

Frazer & Frazer, A. G. Wood, and R. B. Encell, for appellant.

Haymond & Royse and Brubaker Bros. for appellee.

Zollars, J.

The court below awarded to appellee a divorce, alimony, and the custody of the children. Appellant prosecutes this appeal, and insists that the judgment should be reversed because the trial court overruled his motion for a change of venue from the county. That motion was based upon an affidavit in which the appellant stated that he could not have a fair and impartial trial in Kosciusko county, for the reason that appellee had an undue influence over the citizens of that county, and for the reason that an odium attached to him in that county on account of local prejudice against him. The above affidavit states the causes for a change of venue from the county as those causes are provided and stated in the Code of Civil Procedure. Rev. St. 1881, § 412. That section provides as follows:

“The court in term, or the judge thereof in vacation, shall change the venue of any civil action upon the application of either party, made upon affidavit showing one or more of the following causes: * * * Third, that the opposite party has an undue influence over the citizens of the county, or that an odium attaches to the applicant * * * on account of local prejudice; * * * seventh, when either party shall make and file an affidavit of the bias, prejudice, or interest of the judge before whom the said cause is pending.”

The divorce act contains no provision for a change from the judge, nor for a change of venue from the county. The above section of the Civil Code, it will be observed, provides for a change of venue in civil actions. We are thus met in limine with the one question in the case, viz.: Is a divorce case a civil action in such a sense that the above section of the Code of Civil Procedure is applicable thereto? In the recent case of Powell v. Powell, 104 Ind. ---, S. C. 3 N. E. Rep. 639, after a careful examination of the question, it was held that where the procedure is prescribed in the divorce act, that should be pursued, and not the Civil Code; that, so far as a procedure is provided in that act, it may be called a special proceeding; and that, where it is apparent that the legislature intended that certain sections of the Civil Code should not apply in divorce cases, they will not be applied. It was further held that, under the Code, divorce cases are, in some sense at least, “civil actions;” that the rules of pleading and practice provided in the Civil Code will apply to them, except to the extent that a different procedure may be provided in the divorce act, and to the extent that it may be apparent that the legislature intended otherwise. As a result of these holdings, it was further held that the above section of the Civil Code, providing for a change from the judge, is applicable to divorce cases, and that, upon the filing of the proper affidavit under that section in any case, the change must be granted.

We can see no reason why the reasoning and conclusion in that case are not applicable and controlling here. Changes of venue are provided for in order that parties litigant may have fair and impartial trials, and hence the provision for a change from an interested or biased judge, and hence, also, the provision for a change of venue from the county where one of the parties may have an undue influence over the citizens, or where an odium may attach to one of the parties, or to his cause of action or defense, on account of local prejudice. The parties to a litigated case are entitled to a trial in a forum where the scales of justice may balance evenly, unaffected by the influence of either party, or the odium that may result from local prejudice. We can think of no case where this is more important than in a divorce case. Property is involved in the settlement of alimony. It has recently been held, too, by this court, reasserting former rulings, that all of the property rights of the parties, as between themselves, of whatever nature, must be settled in the divorce proceeding, and that they will be presumed to have been so settled. Rose v. Rose, 93 Ind. 179;Behrley v. Behrley, Id. 255.

More than property is involved in the adjudication that shall sunder the marital relation, fasten upon one of the parties, it may be, the brand of dishonor, break up the children's home, and deprive one of the parties of their society and companionship. It can hardly be supposed that the legislature intended that such cases, fraught with such consequences, and in which the public have an interest aside from the parties, should be tried in a less impartial forum than ordinary civil actions, involving property only, and it may be a small amount of property. The more rational conclusion would seem to be that the intention was that such cases should be tried in impartial tribunals; and that, as no provision is made in the divorce act for reaching such tribunals by a change of venue when necessary, the intention was that resort might and should be had to the Code of Civil Procedure. There is nothing in the divorce act to show or to indicate an intention on the part of the legislature that the above section of the Code, providing for a change of venue from the county, should not be applicable to a proceeding for a divorce, in a proper case, unless it be the facts that no such change is provided for in that act; that the case must be commenced in the county where the plaintiff resides, and the fact that the case is to be tried by the court without a jury.

If it be said that the fact that no such change is provided for in the divorce act shows such an intention, then it may be answered that the act just as clearly shows an intention that in a divorce proceeding there shall be no demurrer, no continuance, no motion for a new trial, no exceptions, no bill of exceptions, and no appeal to the supreme court, because none of these are provided for in that act. For these several steps in the procedure it is absolutely necessary to look to the Civil Code. The uniform practice has been to thus look to that Code, and thus divorce cases have uniformly been recognized as, in some sense at least, civil actions.

It will hardly do to say that no change of venue shall be allowed from the county, in divorce cases, simply because such cases are to be commenced in the county where the plaintiff resides, and are to be tried in the court without a jury. There are many cases that must be commenced in a particular and named county. For example, actions to foreclose mortgages must be commenced in the county where the land is situated. Such cases, actions to set aside fraudulent conveyances, actions for injunction, actions to set aside contracts for fraud, actions to settle partnership, actions for specific performance, actions to enforce vendor's and like liens, and all that class of cases which, before the adoption of the constitution, were of equitable cognizance, must now be tried by the court without a jury. In all these cases the venue must be changed from the county, upon motion supported by the proper affidavit. They are civil actions, and the statute is emphatic that in all civil actions the venue must be changed from the county, upon motion supported by an affidavit such as the statute declares to be sufficient. Hence it will not do to say that the venue cannot be changed from the county...