Spencer v. Spencer

• Decision Date: 24 January 1894
• Docket Number: 16,562
• Citation: 36 N.E. 210,136 Ind. 414
• Parties: Spencer v. Spencer
• Court: Indiana Supreme Court

36 N.E. 210

136 Ind. 414

Spencer v. Spencer

No. 16,562

Supreme Court of Indiana

January 24, 1894

From the White Circuit Court.

Judgment is reversed, with instructions to sustain application for a change of venue.

E. B Sellers, W. E. Uhl, W. Guthrie and W. S. Bushnell, for appellant.

T. F Palmer and C. C. Spencer, for appellee.

OPINION

Hackney, J.

This appeal is from a decree granting to the appellee a divorce and alimony.

The first error assigned relates to the sufficiency of the appellee's complaint, and the only argument of counsel in support of this assignment is as follows:

"Comparing its allegations with the facts disclosed by the evidence in the record would lead one to suspect that the pleader had imbibed his inspiration while hobnobbing with Dame Rumor. It is a gossip's story of domestic infelicity, narrated with garrulous perspicuity. Bereft of its fiction, the modest and unassuming facts remaining would cut but a sorry figure as grounds for a divorce."

We can not look to the evidence to determine the sufficiency of the complaint, nor can we accept as argument the mere abstract conclusion of counsel, however well founded, if unsupported by any reference to the facts the omission of which constitutes the insufficiency. We will, therefore, treat this assignment as waived.

An application for a change of the venue from the White Circuit Court was made by the appellant and refused by the court with exception taken and properly presented for review.

Appellant's affidavit in support of said application contained the following:

"The defendant, William Spencer, being duly sworn, upon his oath says that he believes that he can not have a fair and impartial trial in the above entitled cause in White county, Indiana, for the reason that an odium attaches to the applicant on account of local prejudice; that at the time this cause was set down for trial he did not know that said odium attached to the applicant on account of local prejudice; that the same has come to his knowledge since that date; that he was first informed of said odium by his attorneys, Messrs. Sellers & Guthrie, within the last four days; that after the employment of his attorneys herein, and on the same day on which they were so employed by him, this cause was set down for trial by the court. And this affiant had no opportunity to consult with his attorneys with reference to the place where this cause should be tried or with reference to any odium or prejudice against him existing in said county before this cause was set down for trial, and his attorneys had no opportunity to investigate and ascertain whether or not such odium existed until after the cause was set down as aforesaid, nor had he consulted with his...