Richardson v. Augustine

• Decision Date: 30 July 1897
• Citation: 49 P. 930,5 Okla. 667,1897 OK 99
• Parties: RICHARDSON et al. v. AUGUSTINE.
• Court: Oklahoma Supreme Court

1897 OK 99

49 P. 930

5 Okla. 667

RICHARDSON et al. v. AUGUSTINE.

Supreme Court of Oklahoma

Decided: July 30, 1897

Error from the District Court of Noble County.

Action to recover a deposit in a bank. Commenced and tried in the probate court of Noble county, and appealed to the district court of said county by the defendants, where the plaintiff again had judgment, from which the defendants appeal.

Syllabus

¶0 1. CHANGE OF VENUE--Discretion of the Court. Section 56 of the code of civil procedure, relating to changes of venue, is not imperative or mandatory and does not require the granting of a change of venue upon any showing made therefor, but the court is vested with a sound discretion upon the showing made therefor by the applicant, to grant or refuse the same; and, on appeal, unless it appears to the court that there has been an abuse of such discretion by the court in the case, the action of the court below will not be disturbed.

2. COUNTER-SHOWING. The statute authorizes a counter-showing in opposition to the application, or the introduction of counter-affidavits or other extrinsic evidence in opposition. The showing contemplated is not an ex parte showing and other evidence can be considered by the court, in contradiction of the facts and circumstances shown in support of the application. (Per Dale, C. J.; McAtee, J. and Keaton, J.)

3. WHAT MUST BE SHOWN. Affidavits stating only conclusions are not sufficient. The facts and circumstances by which it shall be made to appear to the court that a fair and impartial trial cannot be had must be shown in support of the application. When the facts and circumstances which make it to appear that a fair and impartial trial cannot be had, are shown to the court, by affidavits or other extrinsic evidence by the applicant, and if such facts and circumstances make it clearly to appear that a fair and impartial trial cannot be had, the judge should award the change of venue; otherwise it should be refused.

4. ABUSE OF DISCRETION--What Meant by. By abuse of discretion is here meant a clearly erroneous conclusion and judgment--one that is clearly against the logic and effect of such facts and circumstances as are presented in support of the application, or against the reasonable, probable and natural deductions to be drawn from such facts and circumstances.

5. TIME OF DETERMINING APPLICATION. It is not error for the trial court to refuse to pass upon the application before the commencement of the trial or to postpone its determination until after the jury have been empanelled for the trial of the cause. The change of venue need not be awarded or refused before the commencement of the trial, (Per Dale, C. J.; McAtee, J. and Keaton, J.)

H. H. Howard, J. L. Pancoast, and C. A. Galbraith, for plaintiffs in error.

No brief for defendant in error.

TARSNEY, J.:

¶1 On May 18, 1896, when this cause was called for trial in the district court, the defendants filed their motion for a change of the venue of said cause from the county, and, in support of said motion, filed their affidavits stating that the cause of action arose out of the failure of the First State band of Perry, a banking institution doing business in Perry, Noble county, from June 11 to September 16, 1895; that defendants were sought to be charged in this action with liability to depositor in said bank at the time of its failure; that defendants believed they had a meritorious defense to said action; that some thirty cases, involving the same question, had been brought against defendants in the several courts of said county, and most of such suits were still pending therein; that ten or more of said cases had been tried in said probate court and one had been tried in the district court of said county; that a large number of persons, aggregating some one hundred or more, had been called as jurors in said causes; that the question involved in said causes had been investigated by two grand juries in said county; that a large number of per- sons had been called as witnesses, both before the grand jury and in the trial of said civil causes.

¶2 At the time of the failure of said bank, some 200 or more persons were depositors therein, nearly all of whom suffered loss thereby; that such witnesses, jurors and depositors lived in the various parts of said county and were all acquainted with what purported to be the facts in said causes, and had freely and frequently discussed such facts in the neighborhoods where they resided; that at the time of the failure of said bank, the facts, or what purported to be the facts and circumstances connected therewith, were published in the newspapers of said county, and generally circulated among the people therein; that the failure of said bank created great excitement in said county, and was generally discussed among the people in every part of said county; that the impression and belief was thereby created, continued and still prevailed in every part of said county that defendants were guilty of wrong in connection with said bank, and were liable to the plaintiff and to the other depositors thereof; that numerous persons had made special and repeated efforts to incite a feeling of hostility to defendants; that there had at all times, since the failure of said bank, existed and now exists generally, in the minds of the people of said county, particularly the portion thereof competent to serve as jurors, great prejudice and bias against the affiants; that said defendants were then under indictment in said county on charges growing out of the failure of said bank; that the fact of the existence of such indictments was known generally over said county; that such indictments were secured, as affiants believe, because of such prejudice and bias, and for the purpose of coercing them into the payment of the claims of said depositors; that at the times of the trials of the other civil cases, numerous persons of the age to be competent as jurors, had been present and had heard the facts detailed and were acquainted therewith; that numerous persons had gone about the public places in said county and made threats against the affiants, and in numerous ways expressed feelings of indignation and ill-will; that all the above facts and circumstances had created in the minds of the people, particularly those of age competent to serve as jurors, in every part of said county, the belief that defendants should be held to answer for the claim of the plaintiff and the other depositors of said bank, creating feelings of great prejudice and bias in the minds of such people; that defendant, by reason of the facts stated, could not have a fair and impartial trial of said or any similar cause in said county.

¶3 This affidavit of the defendants was supported by the affidavits of twenty-six other persons, in which the facts were substantially stated as above. When these affidavits were presented to the court, the judge thereof declined to pass upon the application for change of venue, until after the examination of the jury for the trial of the cause, stating that the voir dire examination of the jurors might be used as testimony in the consid- eration of the application, and immediately directed the clerk to call the jury.

¶4 On the examination of the jurors called and examined as to their qualifications, nineteen of those called were challenged for cause and the challenges sustained by the court. Twice during the empanelling of the jury, counsel for the defendants requested the court to pass upon the application for a change of venue, but the court declined and stated he would not pass upon it until the jury was empanelled.

¶5 After the peremptory challenges were exhausted, the application for change of venue was denied. In overruling the application, the court said:

"I think the examination of the jurors clearly shows that a fair and impartial trial can be had in this county. Of the jury, eleven jurors are absolutely without any impression on the questions to be tried. One lives in the city of Perry and has formed and expressed an opinion, but both parties are willing to accept him and of course that fact could not show ground for a change of venue. This is about the only way you can demonstrate whether a fair and impartial trial

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