Scanlon v. Deuel
| Decision Date | 31 March 1911 |
| Docket Number | No. 21,736.,21,736. |
| Citation | 94 N.E. 561,176 Ind. 208 |
| Parties | SCANLON v. DEUEL et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Porter County; H. B. Tuthill, Judge.
Application by James P. Scanlon for a license to sell intoxicating liquors at retail. Thereafter a general remonstrance was filed by George E. Deuel and others, and, from a judgment against him, applicant appeals. Affirmed.
Leonard, Rose & Zollars, for appellant. William H. Matthew and Otto J. Bruce, for appellees.
Appellant brought this proceeding before the commissioners of Lake county in March, 1909, to obtain a license to sell intoxicating liquors at retail. On May 1, 1908, a general remonstrance against the granting of a license “to all applicants” was filed under the provisions of section 8332, Burns 1908. Appellant challenged this remonstrance by a verified pleading in six paragraphs under section 8333, Burns 1908. The board of commissioners found that said remonstrance was signed by a majority of the legal voters of the township, and rendered judgment against the applicant in favor of the remonstrators, as required by section 8332, supra. From this judgment, the appellant appealed to the Lake superior court, where appellant applied for a change of judge on account of the alleged bias and prejudice of said judge against appellant, as provided in the seventh clause of section 422, Burns 1908. This application was sustained and another judge called to sit in said cause. Afterwards appellees filed an application for a change of venue, which was granted, and the case sent to the court below, where the same was tried and a finding made that said remonstrance was signed by a majority of the legal voters of said township, and over a motion for a new trial filed by appellant judgment was rendered against him. From said judgment, appellant appealed to this court and assigned errors.
It is first insisted that the court below erred in granting appellees a change of venue from Lake county under section 422, Burns 1908, for the reason that “the question presented by the remonstrance is purely jurisdictional, which the court must determine, and it is only when such question is determined against the remonstrators that the court has jurisdiction to try the case upon its merits.”
[1] It has been held by this court that an application for a liquor license is a “judicial proceeding,” a “civil action.” Castle v. Bell, 145 Ind. 8, 9, 11, 44 N. E. 2, 3, and cases cited; Wilson v. Mathis, 145 Ind. 493, 494, 44 N. E. 486;Cochell v. Reynolds, 156 Ind. 14, 15, 58 N. E. 1029;Ludwig v. Corey, 158 Ind. 582, 64 N. E. 14, and cases cited; State v. Gorman, 171 Ind. 58, 61, 85 N. E. 763;State v. Vierling, 33 Ind. 99;Blair v. Vierling, 33 Ind. 269;Halloran v. McCullough, 68 Ind. 179;List v. Padgett, 96 Ind. 126, 129;Bryan v. De Moss, 34 Ind. App. 473, 475, 73 N. E. 156; Woollen's Trial Proc. § 3441.
[2] It has also been held that, after an application for liquor license had been appealed from the board of commissioners to the circuit or superior court, a change of venue may be taken from the county by either party under section 422, Burns 1908, which provides for change of venue from the county in civil cases (State v. Vierling, supra; Blair v. Vierling, supra; Weakley v. Wolf, 148 Ind. 208, 219-221, 47 N. E. 466;In re Griffin, 33 Ind. App. 153, 154, 155, 69 N. E. 192, and cases cited; Woollen's Trial Proc. § 3441); that when a remonstrance is filed under section 9 of the law known as the Nicholson law (Burns' Ann. St. 1901, § 7281i), as amended in 1905 (Laws 1905, c. 6), being section 8332, Burns 1908, that either the applicant or the remonstrators may appeal from an adverse judgment of the board. Wilson v. Mathis, 145 Ind. 493, 44 N. E. 486;Head v. Doehleman, 148 Ind. 145, 46 N. E. 585;Lanham v. Woods, 167 Ind. 398, 401, 402, 79 N. E. 376, and cases cited; Cain v. Allen, 168 Ind. 8, 79 N. E. 201, 896, and cases cited.
[3][4][5] It is evident that the filing of a remonstrance under section 9 of the Nicholson law, as amended in 1905, being section 8332, Burns 1908, does not change such proceeding from a civil action to any other kind of action. Neither does the fact that the questions presented by the remonstrance under section 9 (section 8332), supra, are to be determined by the court without a jury affect the right to a change of venue, for the reason that the right to have a change of venue from the county under said section 422, supra, does not depend upon whether the same can or may be tried by a jury. Powell v. Powell, 104 Ind. 18, 3 N. E. 639;Evans v. Evans, 105 Ind. 204, 5 N. E. 24, 768. Changes of venue from the county have been granted in liquor license cases where, as in this case, the only remonstrance was under section 9 of the Nicholson law, as amended in 1905, being section 8332, Burns 1908. Ludwig v. Corey, 158 Ind. 582, 583, 64 N. E. 14;Lee v. Shull, 172 Ind. 309, 88 N. E. 521;Adams v. Smith, 173 Ind. 398, 400, 90 N. E. 625. The court did not err in granting the change of venue from Lake county. While it might have been proper for the court to suspend action on appellee's motion for a change of venue from Lake county until the issues on the exceptions to the remonstrances were closed (Galey v. Mason, 91 N. E. 561), it was not error to grant the change of venue before said issues were closed.
It is next insisted by appellant that the court erred in sustaining appellees' motion to require him to make the first paragraph of his verified pleading, denying the legal qualifications to vote of the remonstrators named in said paragraph, more specific, definite, and certain by stating specifically as to each of said named remonstrators what particular qualification he did not possess that was necessary to constitute him a voter at the time said remonstrance was filed. The statute authorizing the filing of said verified pleading was enacted in 1907 (Acts 1907, p. 281), being section 8333, Burns 1908. Before the enactment of said act of 1907, it was held by this court that the burden of proving that the remonstrance came within the requirements of section 8332, Burns 1908, rested upon the remonstrators. Jones v. Alexander, 167 Ind. 395, 79 N. E. 368.
The rule as declared in said case was abrogated by said act of 1907, being section 8333, Burns 1908, and under its provisions the remonstrance when filed of itself becomes prima facie evidence that the names of the persons signed thereto “were regularly and lawfully signed, and that such person or persons at the time the remonstrance was filed were legal voters of the township in case the remonstrance is filed against the traffic in intoxicating liquors in the township, or that they were legal voters of the city ward in case such remonstrance is directed against the traffic in intoxicating liquors in the ward of a city, and that each and all of the remonstrators were legally qualified to sign the remonstrance,” as provided in said section 8333, supra.
[6] But if the applicant files a pleading verified by him, challenging the legal qualifications of certain specified remonstrators as voters, or the authority of the persons who have acted for them in signing or attaching their names to the remonstrance, the burden is upon the remonstrators to establish the existence of such of the legal qualifications of each of the remonstrators to become such as are so denied under oath by the appellant, and the authority of the persons by whom their names were signed and attached to the remonstrances, whose authority is so denied under oath by appellant. Miller v. Resler, 172 Ind. 320, 326, 327, 88...
To continue reading
Request your trial