Pierce v. Crisp

• Decision Date: 26 February 1937
• Parties: PIERCE v. CRISP.
• Court: Kentucky Court of Appeals

102 S.W.2d 386

267 Ky. 420

PIERCE v. CRISP.

Court of Appeals of Kentucky

February 26, 1937

Appeal from Circuit Court, Greenup County.

Action by Ernest Pierce against George Crisp. From an adverse judgment, plaintiff appeals.

Affirmed.

Lovel H. Liles, of Greenup, and Waugh & Howerton, of Ashland, for appellant.

J. D Atkinson, and John F. Coldiron, both of Greenup, for appellee.

THOMAS Justice.

This is the second appeal of this case. Our opinion in the first one will be found in 260 Ky. 519, 86 S.W.2d 293, wherein the facts, as developed upon the trial and out of which the litigation grew, are stated. The grievance for which recovery was sought by the petition of appellant (to whom we shall hereafter refer as plaintiff) was of a dual nature, i. e for alienation of the affections of his wife by appellee and defendant below, and for criminal conversation. The first wrong for which recovery was sought (alienation of affections) was later abandoned and the action proceeded as solely based upon the other ground relied on for recovery i.e., criminal conversation. The action was filed on January 18, 1934, and the first trial was had on March 23d thereafter, at which there was a verdict for defendant. Plaintiff appealed and the judgment dismissing his petition was reversed.

On November 22, 1935, the mandate that issued from this court was filed in the trial court and on that day the case was set for trial by agreement of parties for December 5, 1935, but before that day was reached, and four days after the case had been set for trial by agreement, plaintiff filed his motion for a change of venue pursuant to the provisions of section 1094 et seq. of Baldwin's 1936 Revision of Carroll's Kentucky Statutes. The facts averred in support thereof were--the personal popularity and influence of defendant in Greenup county because of his social standing and past official record (he having been sheriff and deputy sheriff of the county), plus the limited acquaintance and absence of influence of plaintiff, and also, what counsel describes as the "odium" of his cause--thereby rendering it impossible for plaintiff to obtain a fair trial before a jury composed of citizens of the county. The grounds were sustained by the affidavits of twelve citizens of the county substantially supporting the petition for a change of venue. It, and the affidavits filed in support of it, were met by defendant's response denying the alleged grounds, and he also filed affidavits of twelve citizens of the county contradicting those filed by plaintiff. Upon the hearing of the motion the court overruled it, and at the trial, under instructions of the court of which no complaint is made, the jury returned a verdict in favor of plaintiff for $100. Being dissatisfied with the amount of it, he filed his motion for a new trial which the court overruled and he has prosecuted this appeal. In his motion for a new trial, plaintiff relied on several grounds, but he has abandoned all of them in this court, except the alleged error of the court overruling his motion for a change of venue; and, as a consequence, we will devote this entire opinion to a consideration of that sole ground.

The phrase "change of venue," as invoked in this case, means the transferring of a cause from a court in which it was brought or is pending to another co-ordinate one for reasons that prevent one or both of the parties from having a fair trial of the case. It was not a right under the common law, but is of constitutional or statutory origin, and sometimes founded upon a rule of court, or the court in which the action is pending and in which the motion for a change is made. See 67 C.J. 132 et seq., and § 219 et seq. Also, 40 Cyc. page 116 et seq. Our statutory provisions relating to the subject are set out in the sections supra; but in none of them is any particular time fixed within which the motion may be made and beyond which it may not be done. Some jurisdictions, however, possess statutory enactments with reference thereto and, as said, some courts have rules regulating the subject. However, in situations as exist in this jurisdiction, i, e., statutory regulations as to the method of applying for the change of venue, etc., but without fixing the time within which the application may be made, the universal rule seems to be that the application should be made with reasonable dispatch and, if not done, the right to invoke it will be waived.

The text in 40 Cyc. 124, on the question of waiver, says "The right to a change of venue is one which may be waived, and this may be done impliedly as well as expressly." One of the implied methods by which it may be done as stated in the same text is "by delay in making such application." Those excerpts are supported by decisions from many of the states of the Union and the same practice is repeated by all text-writers upon the subject. Thus the text in 67 C.J. 171, § 279, in stating the correct rule in the absence of specific constitutional, statutory, or court rule regulation, says: "Independently of such regulations, the right to a change of venue, like every...