Shattuck v. Myers
| Decision Date | 30 May 1859 |
| Citation | 13 Ind. 45 |
| Parties | Shattuck v. Myers |
| Court | Indiana Supreme Court |
The Petition for a Rehearing of this Case was Filed on the 28th of July, and Overruled on the 8th of November.
From the Vigo Circuit Court.
The judgment is affirmed with 3 per cent. damages and costs.
J. P Usher and J. W. Gordon for appellants.
R. W Thompson and J. P. Baird, for appellee.
This was an action against Shattuck, by Myers, for the seduction of his daughter.
Trial; verdict and judgment for the plaintiff for 1,500 dollars.
Several errors are assigned--
First. Upon the ruling of the Court on the motion to change the venue.
It appears by the record, that the defendant was not present at the trial, in person, and that the application for a change, was made and supported by the affidavit of his attorney.
It has been several times decided, that applications in civil actions, for a change of venue, when properly presented, should be granted, and that the granting or withholding thereof, was not within the discretion of the Court. Witter v. Taylor, 7 Ind. 110.--Shaw v. Hamilton, 10 id. 182.
In Sherry v. Denn, 8 Blackf. 542, it was held that, under the statute then in force, a stranger to the record could not make the affidavit. The wording of that statute is slightly different from that under which this case was decided. Without doubt, there are cases in which persons other than parties to the record, would have to make the affidavit, if made at all; as in suits by or against corporations, &c. But these cases, in our opinion, are exceptions to the general rule, which is. we think, that the application should be made by the party, and supported by his affidavit. It is, in one sense, a personal privilege a party possesses, to be tried by a jury of the vicinage, or to waive the right to be thus tried, by asking a change of venue. 7 Ind. 110, supra.
The statute is, that "The Court in term, or the judge in vacation, may change the venue of any civil action, upon the application of either party, made upon affidavit showing," &c.
It would be the duty of the Court, upon a proper case made by the application and affidavit of the party, to grant a change. There would be no discretion. But whilst we say this much, we are inclined to think that in the further consideration of the statute, and the practice that arises under it, we must either admit, under proper limitations and restraints, or entirely exclude, applications in behalf of a party, made by persons not parties to the record. If, in putting a construction upon the statute, it should be determined that no one but the party can make the affidavit, we can perceive that very great injustice might be done to parties who were necessarily absent, or who could not make the affidavit. If we determine that the affidavit of persons other than the party may be received, then the question arises, what limit is there to the introduction of such affidavits? Shall the affidavit of any one be received, and compel an order by the Court to change the venue? Such a construction as this might, and, we doubt not, would, often lead to a virtual defeat of the ends of justice.
Viewing the whole matter in this light, we are inclined to think that the proper practice is, to leave it in the sound legal discretion of the Court, to grant or refuse the change, upon application, &c., made by one not a party to the record.
We are strengthened in this construction of the statute, by reference to other statutes, to-wit, regulating applications for writs of attachment, habeas corpus, capias, &c., in each of which the affidavit may be made by the party, his agent or attorney.
The affidavit in support of the application in the case at bar, having been made by the attorney in the case, not disclosing any reason for the absence of the defendant, or why he did not make the affidavit, we cannot say that the Court abused that discretion.
Second. Was it error to refuse a continuance because of the absence of the witnesses named, to-wit, Wilson, Paddock, and Stewart. This was the second application, at that term, for a continuance for the same general reason, namely, the absence of witnesses. The first was overruled, whether correctly or not we are not called upon to decide, as no point is made upon that ruling. Rule 28.
Upon these facts a question is raised, as to what the practice should be.
"A motion for a continuance, is an application to the sound, legal discretion of the Court, over which, if improperly used, a superior Court will exercise a control." Vanblaricum v. Ward, 1 Blackf. 50.--Espy v. The State Bank, 5 Ind. 274.
In an application for a continuance, counter affidavits should not be received. Hubbard v. The State, 7 Ind. 160. Nor amendments permitted to those filed after a decision of the motion founded thereon. Driskill v. The State, id. 341.
We are not apprised of any reason why the practice should not be as strict in civil as in criminal cases.
If it is not proper to permit an amendment to an affidavit, after it has been passed upon, we cannot see how such application can be distinguished from one renewed for the same general cause with that overruled: especially where that cause existed at the time of the first application. In the case at bar, the defendant conceived he had a right to a continuance, because of the absence of witnesses. An affidavit was filed as to one, and the motion overruled; but suppose that, instead of the Court taking action upon it, the plaintiff had offered to admit, as true, the matters that it was averred in the affidavit the witness would testify to. This he had a right to do.
What, then, would have been the rights of the defendant? Could he as a matter of course, have proceeded to file an additional affidavit, stating that other witnesses were absent, by whom he could prove other facts, &c., without showing that some excuse existed for not including all the reasons in the first application, that existed at the time of making it?
If the witnesses named in the second affidavit, in the case at bar had appeared and testified, as it was stated in the affidavit they would, their evidence could have been received but for one purpose, to-wit, in fixing the amount of damages, and not...
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