Petition of James W. M. Newlin
| Decision Date | 21 January 1889 |
| Parties | PETITION OF JAMES W. M. NEWLIN. |
| Court | Pennsylvania Supreme Court |
Before PAXSON, C. J., STERRETT, GREEN, CLARK, WILLIAMS, McCOLLUM and MITCHELL, JJ.
FOR A MANDAMUS TO THE COURT OF COMMON PLEAS OF INDIANA COUNTY.
No. 000 October Term 1889, Sup. Ct.
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This application is made under the act of March 30, 1875. The plaintiff sets out the facts which he alleges entitle him to a change of venue in the above-entitled case; asserts that he has made an application to the Court of Common Pleas of Indiana county in due form for such change, and that his application has been refused; and prays this court to "issue a writ of mandamus to be directed to said Hon. HARRY WHITE, president judge of the Court of Common Pleas of Indiana county, commanding him to make an order changing the venue in the aforesaid action."
The act of 1875, after an enumeration of the several cases in which a change of venue should be made, proceeded in the second section to prescribe the manner in which the change should be applied for and made. It directs that the application shall be made to the court in which the cause is pending, or a law judge thereof in vacation, by petition setting forth the cause of the application and accompanied by an affidavit of the truth of the facts alleged therein. Notice must be given to the opposite party or his attorney of the application, and after hearing "the said court or judge shall, if satisfied of the truth of the facts alleged," award a change of venue. The duty thus imposed is judicial, not ministerial, in its character. The court or judge is required to hear the application, after reasonable notice to the other side, and if, or when, satisfied of the truth of the facts alleged, make an order changing the venue. But what if the court or judge is not satisfied of the truth of the facts alleged? Clearly, until satisfied, the duty to make the order does not arise. If the court refuse to hear the application we may compel the performance of the duty to hear and determine, by the writ of mandamus, but we cannot control the discretion, direct the belief, or correct the reasoning of the court or judge in so summary manner. What is complained of in this case is not that the judge did not hear, but that, having heard, he decided in a manner which the plaintiff thinks was wrong; and he asks us to review and correct the conclusions of the learned judge...
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