Moulder v. Kempff

• Decision Date: 18 September 1888
• Citation: 17 N.E. 906,115 Ind. 459
• Parties: Moulder v. Kempff.
• Court: Indiana Supreme Court

115 Ind. 459

17 N.E. 906

Moulder

v.Kempff.

Supreme Court of Indiana.

September 18, 1888.

Appeal from circuit court, Clinton county; A. E. Paige, Judge.Blacklidge, Blacklidge & Moon, for appellant. Freeman Cooper, for appellee.

Niblack, C. J.

This was an application by Martz Kempff, to the board of commissioners of the county of Howard, for a license to sell intoxicating liquors in a less quantity than a quart at a time, in the town of Russiaville, in that county. Section 5314, Rev. St. 1881. Thomas H. Moulder remonstrated against the granting of a license to Kempff upon the grounds that he had formerly been connected with the sale of intoxicating liquors at the place described in his application, and that during that time he and his partner in the business had kept a disorderly house. Also that on a day named he, the said Kempff, had been guilty of selling intoxicating liquors by retail without a license. The board of commissioners, after hearing the evidence, refused to grant a license. Kempff thereupon appealed to the Howard circuit court, where, upon his motion, the venue of the cause was changed to the county of Clinton. On the first day of the next term of the Clinton circuit court, which began on Monday, the 7th day of November, 1887, the cause was, in the absence of both Moulder and his counsel, set down for trial on the succeeding Monday, the 14th day of the same month. On the day following, that is, on the 8th day of November, 1887, H. C. Sheridan, one of Kempff's attorneys, who resided at Frankfort, in Clinton county, wrote to Blacklidge & Bro., attorneys, residing at Kokomo, in Howard county, and who were leading counsel for Moulder, informing them as to the time at which the cause had been set for trial, and suggesting to them that if the time named would not suit them, they had better see James F. Morrison, of Kokomo, Kempff's senior counsel, and get him to agree to some other time. Soon after the receipt of this letter, Morrison acting on the one side, and Blacklidge & Bro. on the other, entered into an agreement in writing that the cause should be postponed and set for trial on Monday, the 21st day of the month named, and mailed it to Sheridan, at Frankfort. On Monday, the 14th day of November, 1887, B. C. Moon, of Kokomo, appeared in the Clinton circuit court as attorney for Moulder, and presented an affidavit made by James C. Blacklidge, a member of the firm of Blacklidge & Bro., stating that he had been and still was the principal attorney and counselor of Moulder in the management of his defense; that his engagements in the Howard circuit court, in the trial of causes, were at the time such that it was impossible for him to prepare the cause for trial on that day; that, relying upon the agreement between Morrison and his firm for the postponement of the cause until the 21st day of that month, a statement of the circumstances which led to it having been submitted, and being restrained by engagements in other courts, the attorneys for Moulder had not caused the witnesses on his behalf to be subpœnaed, and had not prepared the cause for trial, and in consequence could not then try the same; that the affidavit was not made for delay merely, but that justice might be done. Upon this affidavit Moon moved that the cause should be postponed until some future day, naming a day on which no cause was pending for trial, or be continued until the next term; but his motion was overruled, and he was required to at once proceed with the trial of the cause. Moulder then filed his affidavit for a change of venue from the county, for the alleged reasons- First, that Kempff had an undue influence over the citizens of the county; secondly, that an odium attached to his, the said Moulder's, defense in the cause, on account of local prejudice. But his application was overruled upon the ground that there was a rule of the Clinton circuit court...