Michigan Mut. Life Ins. Co. v. Naugle

• Decision Date: 15 December 1891
• Citation: 29 N.E. 393,130 Ind. 79
• Parties: MICHIGAN MUT. LIFE INS. CO. v. NAUGLE.
• Court: Indiana Supreme Court

130 Ind. 79

29 N.E. 393

MICHIGAN MUT. LIFE INS. CO.

v.NAUGLE.

Supreme Court of Indiana.

Dec. 15, 1891.

Appeal from circuit court, Jasper county; M. WINFIELD, Special Judge.

Action by Carrie P. Naugle against the Michigan Mutual Life Insurance Company to recover on a policy of insurance. Judgment for plaintiff. Defendant appeals. Affirmed.

W. S. Hartman and W. H. Hamelle, for appellant. E. P. Hammond, W. B. Austin, and U. Z. Wiley, for appellee.

MCBRIDE, J.

This suit was commenced in the Benton circuit court, and the venue changed to the Jasper circuit court. The appellant, when it appeared in the Jasper circuit court, moved to remand the cause to Benton county for trial. This motion was overruled. The appellant alleges that this was error. The change of venue from Benton county was granted on motion of the appellant, who was the defendant below. The affidavit upon which the motion was based alleged that the party asking it could not have a fair and impartial trial of the cause in Benton county, for the reason that in that county an odium attached to the defense, and also because of bias and prejudice. It also contained averments that the same reasons which would operate to prevent a fair trial in Benton county would also prevent a fair trial of the cause in Jasper and Newton counties. By the same motion a change of judge was asked upon grounds sufficiently shown. Notwithstanding the showing as to the counties of Jasper and Newton, the court ordered the venue changed to Jasper county. Twenty days' time was allowed within which to perfect the change from the county. The appellant did not pay the costs within the specified time, but the appellee, the plaintiff below, did pay them, and the papers were, within the time limited, transmitted to the clerk of the Jasper circuit court, and filed by him, and the cause docketed in that court for trial. The appellant appeared in the Jasper circuit court, and moved to remand the cause to the Benton circuit court; showing, in support of the motion, the foregoing facts. Counsel for the appellant also, in their showing in support of their motion to remand, assign, as their reason for not paying the costs and perfecting the change of venue themselves, that after investigation they concluded that they could have a fairer trial in Benton than in Jasper county, and therefore decided to abandon their application to change the venue of the cause. The appellant insists that the payment of the costs by the appellee was unauthorized; that it did not justify clerk in transmitting the papers; and that the Jasper circuit court did not thereby rightfully acquire jurisdiction of the cause.

It is apparent that the legislature in the enactment of the statute governing changes of venue sought to accomplish a double purpose. It was designed primarily to enable litigants to remove their causes for trial from an atmosphere of prejudice and unfairness to a locality where they might find fair and unbiased triers, with surroundings not tainted by an undeserved odium affecting them or their cause. At the same time they wished so far as possible to limit the mischief that might be done by those whose only wish was delay and the hinderance of justice. Therefore, while providing for changes of venue, they allow but one change, and invest the court with the discretion of designating the county to which it shall go, and the time within which the change shall be perfected, by the payment of the costs. When the one change allowed is granted, whether it be perfected or not, the party who asked it can have no other change. The making of the order ends his right. He has then had the one change of venue allowed him, whether he avails himself of it or not. When a party applies to a court for a change of venue, it must be presumed that the application is made in good faith, not for delay, but because the party asking it really believes he can have a fairer trial elsewhere. The opposite party is authorized to act upon that assumption. While no duty rests upon him in the matter, and the party who asks for the change is required to do all that is necessary to perfect it, we can see no good reason why he should complain if his opponent takes him at his word, and aids in perfecting it. It certainly cannot be said that he is harmed by it. But it is said that a party has the right to waive his right to a change of venue after it has been granted him, and that this practice would deprive him of that right. It cannot be said that such a waiver is the exercise of a right. The change of venue is his by right, and his waiver is simply his neglect to avail himself of that right. A failure to pay the costs of the change within the time limited does operate as a waiver by express provision of the statute, but it does not follow that the opposite party is compelled to wait until the expiration of that time to ascertain if he will by his neglect thus waive it. We wish it understood, however, that what is said above is limited to cases like that before us, where the only evidence of waiver is the mere neglect or failure of the party to avail himself of the change granted. We do not wish to be understood as holding that a party may not, after he has been granted a change of venue, in open court and before the change is perfected, make such waiver of the right as will result in leaving the cause still pending in that court, to be removed only on application of some other party. While we do not decide that question, because not before us in this case, we are inclined to the opinion that, while the change would bar the right of the party to any further change of county, nevertheless he may thus waive the actual removal of the cause out of the county on his application, after which waiver the opposite party would have no right to perfect it.

It was not error for the court to disregard statements in the affidavit relating to the alleged odium and prejudice existing in Jasper and Newton counties. Such statements in an affidavit for change of venue, relating to counties other than that in which the cause is pending, can be regarded only as matter of information, serving to aid the court in the exercise of its discretion in determining to what county the cause should be sent. Viewed in that light, they are not improper, but they are in no sense binding upon the court, and may be disregarded.

This brings us to the consideration of the next alleged error discussed by counsel, that the court erred in overruling separate demurrers to each paragraph of the complaint. The appellee is the widow of John Pearcy, who died March 10, 1884. At the time of his death he held an insurance policy upon his own life, issued by the appellant in favor of the appellee, for the sum of $2,000. The premiums were all paid at the time of his death, and appellee, in accordance with the terms of the policy, made proper proofs of his death. May 29, 1884, the appellant compromised with her by paying her $1,000, and obtained from her a surrender of the policy, and a release as to...