Little v. Wyoming County

• Citation: 63 A. 1039,214 Pa. 596
• Decision Date: 09 April 1906
• Docket Number: 383
• Parties: Little, Appellant, v. Wyoming County
• Court: United States State Supreme Court of Pennsylvania

63 A. 1039

214 Pa. 596

Little, Appellant, v. Wyoming County

No. 383

Supreme Court of Pennsylvania

April 9, 1906

Argued February 20, 1906

Appeal, No. 383, Jan. T., 1905, by plaintiff, from order of C.P. Wyoming Co., Oct. T., 1903, No. 68, discharging rule for change of venue in case of C. B. Little, Administrator of C A. Little, v. Wyoming County. Reversed.

Rule for change of venue. Before TERRY, P.J.

The opinion of the Supreme Court states the case.

Error assigned was the order discharging the rule.

It appearing that the applicant for the change of venue had brought himself within the provisions of the fourth paragraph of section one of the act of assembly, the order discharging the rule and refusing a change of venue is reversed and the court below is directed to enter an order making the change of venue as prayed for.

Ernest K. Little, with him C. O. Dersheimer and W. E. Little, for appellant. -- The act is mandatory: Willoughby v. Railway Co., 203 Pa. 243.

H. S Harding, with him J. Wood Piatt, county solicitor, for appellee, cited: Newlin's Petition, 123 Pa. 541; Philadelphia v. Pas. Ry. Co., 143 Pa. 444; Brittain v. Monroe County, 31 Pa. C.C. Rep. 161.

Before MITCHELL, C.J., MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE MESTREZAT:

Article III, section 23 of the constitution provides that: "The power to change the venue in civil and criminal cases shall be vested in the courts, to be exercised in such manner as shall be provided by law." By virtue of the authority thus conferred, the legislature passed the Act of March 30, 1875, P.L. 35, 2 Purd. 2068, providing the manner in which a change of venue in civil cases may be made by the courts. The first section of the act provides that "changes of venue shall be made in any civil cause in law or equity:" (1) When the judge shall be personally interested in the event of the cause or in the question to be determined thereby; (2) when the title under which the parties, or either of them, claim shall have been derived from or through such judge, and he shall be liable thereunder, or whenever he shall hold under the same title with either of the parties in the cause; (3) when any near relative of the judge shall be a party to the cause or interested in the event thereof unless the judge shall select another judge, disinterested and not so related, to try the cause; (4) "whenever the county in which such cause is pending or any municipality therein, or the officials of any such county or municipality, are parties thereto, and it shall appear, by the oath of the party desiring such change of venue, that local prejudice exists, and that a fair trial cannot be had in such county;" (5) "whenever a large number of the inhabitants of the county in which such cause is pending, have an interest in the question involved therein, adverse to the applicant, and it shall appear, by the oath of such applicant, that he believes he cannot have a fair and impartial trial." The second section of the act provides the manner in which the application shall be made, heard and determined. The applicant must apply to the court, or a judge in vacation, by petition setting forth the cause of the application "which shall be accompanied by his affidavit of the truth of the facts alleged therein, and that the said application is not made for the purpose of delay." After notice to the opposite party of his attorney, "the said court or judge shall, if satisfied of the truth of the facts alleged, award a change of venue."

The third section of the act provides that "changes of venue may be made in any civil cause in law or equity:" (1) When it shall appear to the satisfaction of the court that any party to such cause has an undue influence over the minds of the inhabitants of the county or that they are prejudiced against under or by virtue of its police power, but in the exercise of its the applicant, so that a fair and impartial trial cannot be had; (2) when, in any plea of land two juries of the county have failed to agree and have been discharged without rendering a verdict; (3) when it shall be made to appear to the court that a fair and impartial trial cannot be had in the county in which the cause is depending. Applications under this section must be made to the court in term time in the manner provided in the second section of the act, and after notice to the opposite party or his attorney, the court is required to hear the parties by counsel and affidavits, if necessary, and may grant or refuse the application in its discretion.

The seventh section of the act repeals all former legislation on the subject.

It will be observed that the first section of the act is mandatory and consequently when a party has satisfied the court or the judge of the existence of any of the causes enumerated in the section, he is entitled to have an order changing the venue. When, however, the application is made for any of the causes set out in the third section of the act, the granting of the change is discretionary with the court. In the language of the section, the court "may refuse or award such change of venue as in its discretion it shall see fit."

The present application was made under the fourth paragraph of the first section of the act. The petition avers that the county of Wyoming is the defendant in the action and that local prejudice exists as to the said action and that a fair trial cannot be had in the county. An affidavit is attached to the petition in which the applicant swears "that the matters above set forth are true and correct and that this application is not made for the purpose of delay." The application is in form substantially a compliance with the act, but it is better practice to confine the petition to an averment of the necessary facts and to include in the affidavit what the act requires it to contain. The county commissioners resisted the application and filed an answer denying "that there is any such local prejudice existing in the said county, as represented by plaintiff, whereby the said plaintiff could not have a fair and impartial trial in the said county, and that therefore the said plaintiff is not entitled to the change of venue as prayed for in the said petition." On this question, raised by the answer, both parties took depositions. The learned court below heard and determined the application on the petition, answer and depositions. It held the allegation in the petition "that a local prejudice exists as to the said action and that a fair trial thereof cannot be had in the said county" to be a jurisdictional fact, and that it must be proved to the satisfaction of the court to entitle the applicant to a change of venue under this paragraph of the first section of the act.

The power to change the venue in civil cases, as observed above is vested in the courts by the...