Jones v. Balsley

• Decision Date: 13 September 1910
• Citation: 111 P. 942,27 Okla. 220,1910 OK 276
• Parties: JONES v. BALSLEY et al.
• Court: Oklahoma Supreme Court

111 P. 942

27 Okla. 220, 1910 OK 276

JONES v. BALSLEY et al.

Supreme Court of Oklahoma

September 13, 1910

Syllabus by the Court.

An application for change of venue under section 6479, Mansf. Dig. (section 3556, Ind. T. Ann. St. 1899), upon the ground that a fair and impartial trial cannot be had because of the undue influence of applicant's adversary, made before the issues are made up, is premature.

An action was brought in one of the United States courts of the Indian Territory, before the admission of the state, on the law docket, for a foreclosure of a mechanic's or material-man's lien. Upon motion of defendant, over objections of plaintiff, the cause was transferred to the equity docket. Thereafter, upon agreement of plaintiff and defendant made in open court, the cause was referred to the master to make findings and report upon all questions both of law and fact. Held, that by said agreement plaintiff waived any right he may have had to a trial by jury, and his objections to the transfer of the case to the equity docket.

Plaintiff alleged in his petition a cause of action against the contractors, entitling him to a judgment upon their account for material furnished, and to a decree foreclosing his lien against the buildings of the owners. He also endeavored to allege and recover on a contract between him and the owners of the buildings, whereby it is alleged that the owners of the buildings agreed that they would pay the account of the contractors for the material furnished. Held, that there was a misjoinder of causes of action, and the court did not err in sustaining a motion to strike out that part of the petition which sought to recover personal judgment against the owners of the buildings.

The furnishing of material gratuitously to take the place of defective material, theretofore furnished and charged, does not operate to extend the statutory period of 60 days from the time the material shall have been furnished or the labor performed within which a subcontractor shall file his claim of lien, as provided in section 4402, Mansf. Dig. (section 2870, Ind. T. Ann. St. 1899).

(Additional Syllabus by Editorial Staff.)

Where a subcontractor has given to the owner of a building notice of his intent to furnish material or perform labor on the building, and the probable value thereof, as expressly required by Mansf. Dig. § 4403 (Ind. T. Ann. St. 1899, § 2870), subsequent payment for such material or labor by the owner of the building to the contractor will not defeat the subcontractor's lien therefor.

Error from District Court, Johnson County; A. T. West, Judge.

Action by James E. Jones against E. S. Balsley and others. From a judgment granting inadequate relief, plaintiff brings error. Affirmed.

Arnote & Monk, for plaintiff in error.

Cotthingham & Bledsoe, for defendants in error.

HAYES J. (after stating the facts as above).

Ten assignments of error are set out in the brief for reversal but in the argument only four propositions are urged against the correctness of the judgment; and we shall notice only those propositions presented in the argument in the brief.

One of the actions of the court complained of was a refusal to grant to plaintiff a change of venue. After the filing of the original petition on the 22d day of August, 1903, plaintiff filed in the court below on the 21st day of October of the same year, before any other pleadings had been filed, his petition for a change of venue. On the next day, defendants in error filed a demurrer to the petition and a plea of misjoinder. Whereupon plaintiff obtained leave to file, and did file, an amended petition, to which the defendants in error demurred, and also filed a motion to make more definite and certain and a plea of misjoinder. After the plea of misjoinder had been sustained, and while the amended petition was pending upon defendants' motion to make the same more definite and certain, which was later sustained, plaintiff presented his motion for a change of venue, which was by the court then overruled. Subsequently defendants answered, and the cause was referred to the master. It does not appear from the record upon what ground the trial court denied the change of venue, but there appears at least one sufficient reason why such action is not reversible error. The change of venue sought by plaintiff was upon the ground that on account of the undue influence of defendants he would not be able to obtain a fair and impartial trial in the Southern district of the Indian Territory, where the action was pending. The statutory provisions authorizing a change of venue upon such ground in the Indian Territory are to be found in chapter 57 Ind. T. Ann. St. §§ 3556-3561 (Mansf. Dig. Ark. c. 153), and section 51, Ind. T. Ann. St. Section 3556 provides that "Any party to a civil action, trial by jury, may obtain an order for a change of venue therein by motion upon a petition stating that he verily believes that he cannot obtain a fair and impartial trial in said action in the county in which the same is pending on account of undue influence of his adversary or the undue prejudice against the petitioner, or his cause of action or defense in such county." Subsequent sections authorize the order to be granted by the judge of the court in open court, or in vacation after notice in certain cases, and require that when the petition has been presented in conformity to the statutes, the judge shall make the order. This statute was designed to insure a party to a civil action, where there is a trial by a jury, a fair and impartial jury to try his cause, and it has application only to those civil actions wherein there is a trial by a jury. Wise v. Martin, 36 Ark. 305. It is not the purpose of this statute to provide relief where the presiding judge is biased or prejudiced. That relief is afforded by other statutes. Sections 46 and 3699, Ind. T. Ann. St.

It cannot be ascertained in any civil action, before the issues are joined, whether there will be any trial by a jury. If the petition does not state a cause of action, there can be no trial anywhere. If defendant fails to answer, plaintiff is entitled to judgment by default; or if, after defendant answers, it be determined that he has no valid defense, a change of venue affords no relief, and it was not intended that plaintiff should be permitted to incur costs for no purpose. Nor can it be said of a defendant who has never answered that he is entitled to a change of venue in order to have an impartial trial, for his answer may disclose that he has no valid defense, and in that event there should be a judgment against him on the pleadings. We have been unable to find any decision from the Supreme Court of Arkansas construing the statute upon this question. The statute does not fix the time for filing the petition; but, consistent with the purpose of the statute and upon sound reason, we think that when the application is made before the issues are joined, it is premature. The reasoning of the court in Hudley v. State, 36 Ark. 237, although not directly in point, supports this conclusion. That was a criminal case, in which defendant objected to the jurisdiction of the court to which the cause had been transferred, because the change of venue had been granted before arraignment in the court from which the cause was transferred. In the opinion it is said: "It has been said to be a safe and judicious practice to require the plea of not guilty to be given in before the change of venue is awarded [citing authorities]. Doubtless it is the better practice to arraign the defendant, and require him to plead to the indictment, before the order changing the venue is made, because it might turn out, in the court to which the venue is changed, that the indictment might be quashed on plea in abatement, motion, or demurrer, and the public would be at the expense and delay of remanding the defendant to the county where the offense was committed for a new indictment." The court in that case, however, held that the irregularity of the court was not prejudicial to defendant, because the change of venue was obtained upon his petition, and he had the benefit of an arraignment and plea of not guilty in the court in which the action was transferred. "Where the convenience of the witnesses, or the impossibility of obtaining an impartial trial, is the ground of the motion, it should not be made till after issue joined." 2 Wait's Prac. p. 630, and authorities there cited; State v. Swepson, 81 N.C. 571; State v. Haywood, 94 N.C. 847. See, also, Eddy v. Houghton et al. (Cal. App.) 91 P. 397; Matlock v. Fry et al., 15 Ind. 483; Dawson et al. v. Vaughan, 42 Ind. 395. A second motion could have been made by plaintiff after the issues were joined. Merrill v. Grinnell et al., 10 How. Prac. (N. Y.) 31. But none was made.

Under the statutes in force in the Indian Territory, the holder of a mechanic's lien had his remedy to enforce same either by an action at law or by a proceeding in equity for foreclosure. Murray v. Rapley, 30 Ark. 569; Kizer Lumber Co. v. Mosley, 56 Ark. 544, 20 S.W 409. Plaintiff filed this action on the law side of the docket. Upon motion of defendant, and over objections of plaintiff, the court ordered it transferred to the equity docket. Whether this action of the court was error is not necessary to determine, because plaintiff subsequently waived his objections to the transfer by agreeing that the cause might be referred to a master, to make and report findings of fact and conclusions of law. A proceeding to enforce a mechanic's lien is in its nature an equitable proceeding, and the cumulative remedy of enforcement by action at law exists by reason of the provision of the statute. Ind. T. Ann. St. 1899, § 2879 (Mansf. Dig. §...