Galey v. Mason

• Decision Date: 22 April 1910
• Docket Number: No. 21,466.,21,466.
• Citation: 174 Ind. 158,91 N.E. 561
• Parties: GALEY et al. v. MASON et al.
• Court: Indiana Supreme Court

174 Ind. 158

91 N.E. 561

GALEY et al.

v.MASON et al.

No. 21,466.

Supreme Court of Indiana.

April 22, 1910.

Appeal from Circuit Court, Montgomery County; Jere West, Judge.

Petition by Orlando W. Mason and others for a local option election. The board of commissioners of the county ordered the election, and Charles F. Galey and another each appealed to the circuit court. Motions by the appellants for a new trial were overruled, and their appeals were dismissed, and they again appeal. Affirmed.

John F. McHugh, for appellants. R. C. Minton and E. E. Ballard, for appellees.

MONKS, J.

Appellees filed with the county auditor of Montgomery county a petition praying the board of commissioners of said county to order a special election under the act approved September 26, 1908 (Acts Sp. Sess. 1908. pp. 4-9), commonly known as the county local option law. Said board of commissioners ordered said election as prayed for. From this judgment appellants each appealed to the court below. Appellees filed in the court below a motion to dismiss said appeals. Afterwards, at the same term of the court below, appellants filed their separate motions, supported by affidavits, for a change of venue in said cause from said county. Afterwards, at said term of court, said court sustained said motion to dismiss said appeals, to which rulings of the court each appellant excepted. Thereupon appellants filed their joint and several motions for a new trial, assigning as causes therefor: “(1) That the court erred in refusing to grant of change of venue in said cause until after he had ruled upon the motion of the petitioners to dismiss the appeal; (2) that the court erred in sustaining the motion of the petitioners to dismiss the appeal.” The court overruled each of said motions for a new trial, and rendered judgment dismissing said appeal. The assignment of errors calls in question the action of the court in overruling said motions for a new trial.

Said local option law, approved September 26, 1908 (Acts Sp. Sess. 1908, pp. 4-9), was held constitutional by this court in McPherson v. State, 90 N. E. 610. The record shows that the motion to dismiss the appeals of appellants from the board of commissioners was made before appellants filed their motions and affidavits for a change of venue from the county, but said motion to dismiss said appeals was sustained after said motion for a change of venue was filed. It has been uniformly held by this court that, when a motion for a change of venue from the county is filed, it is proper for the court to suspend action on such motion until after the issues are closed, for the reason that, as in this case, the cause may be disposed of without a trial. Dawson v. Vaughan, 42 Ind. 395, 397;Matlock v. Fry, 15 Ind. 483;Risher v. Morgan, 56 Ind. 172; 2 Works, Prac. & Pleading, § 1263. It follows that the court did not err in first ruling upon the motion to dismiss said appeals, although appellants' motions for a change of venue from the county were then pending. When the court sustained the motion to dismiss said appeals, even if said ruling was erroneous, it was not necessary to rule upon appellants' application for a change of venue, because the dismissal of said appeals...