Ringgenberg v. Hartman

• Decision Date: 12 March 1885
• Docket Number: 11,444
• Citation: 26 N.E. 91,102 Ind. 537
• Parties: Ringgenberg et al. v. Hartman et al
• Court: Indiana Supreme Court

26 N.E. 91

102 Ind. 537

Ringgenberg et al. v. Hartman et al

No. 11,444

Supreme Court of Indiana

March 12, 1885

Petition for a Rehearing Overruled Nov. 3, 1885.

From the Marshall Circuit Court.

Judgment affirmed.

J. D McLaren, L. M. Lauer, J. D. Chaplin and H. Corbin, for appellants.

A. C Capron, J. W. Parks and M. A. O. Packard, for appellees.

OPINION

Elliott, J.

The application for the change of venue made by the appellants was filed after the time limited by a rule of the trial court, and the question is whether the application shows an excuse for not applying for the change within the time prescribed. It is stated in general terms, in the affidavit on which the application is founded, that the cause for which the change was asked was not known to the appellants until the evening before the affidavit was filed, but it is not shown that any diligence was used to discover the fact. On the authority of Witz v. Spencer, 51 Ind. 253, the affidavit must be held insufficient, for the reason that it fails to show the exercise of diligence.

The action was brought by the appellants to recover the possession of personal property, and a supplemental complaint was tendered by them after the issues were closed. There is no specification of error presenting this ruling for review, and consequently no question upon it is before us. The ruling was not made upon the trial, nor upon matters connected with it, but the ruling related to the pleadings, and not to matters connected with the trial. The ruling is, therefore, not one to be presented by a motion for a new trial, but belongs to the class of cases embracing motions to strike out, to compel answers to interrogatories by the parties, to make more specific, and the like.

An affidavit for a change of venue, on the ground that it was required by the convenience of the witnesses, was also filed by the appellants, and a motion for a change duly made. In our opinion, the trial court has a discretionary power to grant or refuse changes on the ground upon which appellants' application was based, and where a discretionary power exists the appellate court will interfere only in cases, where it appears to have been abused. In this case there was no abuse of discretion.

The record does not show what the appellants proposed to prove by Martin Reed, and, under the settled practice, we must hold that no available error was committed in sustaining the...