Galbraith v. Williams

• Decision Date: 26 April 1899
• Citation: 50 S.W. 686,106 Ky. 431
• Parties: GALBRAITH v. WILLIAMS, Justice of the Peace. [1]
• Court: Kentucky Court of Appeals

50 S.W. 686

106 Ky. 431

GALBRAITH v. WILLIAMS, Justice of the Peace. ^[1]

Court of Appeals of Kentucky.

April 26, 1899

Appeal from circuit court, Mason county.

"Not to be officially reported."

Action by Augustus Galbraith against C. W. Williams, justice of the peace, for a mandamus. Judgment for defendant, and plaintiff appeals. Affirmed.

L. W Galbraith, for appellant.

Thos R. Phister, for appellee.

PAYNTER J.

The appellee, Williams, is a justice of the peace in Mason county. There was pending before him a suit of Jack Anderson against the appellant, Galbraith. The appellant filed therein the following affidavit, to wit: "The defendant Augustus Galbraith, states that he believes that he cannot have a fair trial in the court of C. W. Williams, J. P. M C., in which this cause is pending, and prays for a change of venue to the court of some other justice of the peace of Mason county." Upon the consideration of the motion, the appellee overruled it, and proceeded to try the case. These facts appear in the petition, to which the court sustained a demurrer.

The purpose of this action was to have the circuit court issue a mandamus against the appellee, compelling him to sustain the motion, and grant a change of venue. The affidavit was filed under section 1107, Ky. St., which reads as follows: "A party to a suit pending before a justice or police or city judge, shall have a change of venue to another justice of the same county when he shall make oath that he believes he cannot have a fair trial in the court in which the cause is pending, and the cause may be tried out of term time by the justice to whose court it is removed." As the affidavit failed to state the fact or facts upon which the belief is founded that he could not have a fair trial before the appellee, it was insufficient, and the court properly overruled the motion.

Section 968, Id., provides, "if either party shall file with the clerk of the court his affidavit that the judge will not afford him a fair and impartial trial," a special judge shall be selected or elected to try the cause. This court held, in interpreting that section of the statute in Insurance Co. v. Landram, 88 Ky. 433, 11 S.W. 367 592, that the affidavit must state the fact or facts upon which the belief is founded that the judge will not give a fair trial. In the case of a circuit judge, he would vacate the bench, and a special judge would take his place; in a proceeding before a...