Thorn v. Silver

Decision Date23 November 1909
Docket NumberNo. 21,333.,21,333.
Citation174 Ind. 504,89 N.E. 943
PartiesTHORN et al. v. SILVER et al.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Huntington County; S. E. Cook, Judge.

Petition by William Thorn and others for a drain, to which remonstrance was filed by Henry C. Silver and others. Judgment of dismissal, and petitioners appeal. Reversed, with instructions to render judgment for petitioners.Cline & Cline, for appellants. W. A. Branyan, W. D. Hamer, and H. B. Spencer, for appellees.

MYERS, J.

Appellees on August 13, 1904, filed in the clerk's office of the Huntington circuit court their petition for a drain in Huntington county. On April 12, 1905, commissioners of drainage filed a favorable report. Remonstrances were filed for cause and also a two-thirds remonstrance purporting to be filed by two-thirds of the landowners named as such in the report. The two-thirds remonstrance was withdrawn and the cause went to trial March 18, 1907, on the remonstrances for cause, and, after the hearing had progressed five days, the further hearing was continued until the April term, 1907. The drainage act of 1907 went into force April 10, 1907, and on April 20, 1907, appellee Silver and 137 other “residents of Huntington county, and owners of lands severally assessed for the construction of the improvement,” over the objection and exception of appellants, filed a two-thirds remonstrance against the drain, and moved the dismissal of the proceedings, and appellants were ruled to reply to the two-thirds remonstrance. At this point, and on May 6, 1907, appellants filed an affidavit for a change of venue from the judge, alleging that they were “two of the petitioners in the above-entitled matter, and that they could not have a fair and impartial trial thereof *** on account of the bias and prejudice of said judge against the petitioners, and their cause of action, which bias and prejudice these affiants say exists, that the cause for said change of judge has just come to the knowledge of these affiants, and that they have filed their affidavit asking for such change, and presented the same to the court at the earliest opportunity.” The motion for a change of venue was denied, and an exception reserved to the ruling. A motion was made to strike out the two-thirds remonstrance and overruled, and exception reserved. Appellants then successfully demurred to the two-thirds remonstrance, and reserved exceptions, and filed replies to the two-thirds remonstrance. A trial was had, special findings of fact made, and conclusions of law stated as to the two-thirds remonstrance, and judgment rendered dismissing the petition and proceeding, at the costs of the petitioners.

The assignment of errors calls in question the ruling in refusing a change of venue, assigned as a cause for a new trial, overruling the objections to filing the two-thirds remonstrance; overruling the motion to strike out the remonstrance; overruling the demurrer to the remonstrance, and error in the conclusions of law. The trial upon the remonstrances for cause was in progress when the act of 1907 went into effect, and that act provided for a two-thirds remonstrance being filed in case none had been filed (Burns' Ann. St. 1908, § 6142), and, when filed, would necessarily suspend the trial on the remonstrances for cause until it could be disposed of, and, if found in favor of appellees, ended the proceeding, but, if otherwise, the hearing would proceed upon the remonstrances for cause, but the cause was none the less on trial. The suspension of the trial by the two-thirds remonstrance did not of itself operate to set aside the submission, because, if the court had found against appellees on the two-thirds remonstrance, the right to proceed on the remonstrance for cause was not affected. Had appellants desired to have the submission set aside on the remonstrance for cause, there should have been a motion to that effect, but each party seems to have treated the trial on the remonstrance for cause, as suspended, until the two-thirds remonstrance could be disposed of, and, under such circumstances, neither of them was in a situation to ask a change of venue from the judge upon the issue tendered by the remonstrances for cause; for, as we understand it, that practice is not allowable where a trial is in progress, unless there is disclosed a state of facts which would have rendered the judge ineligible, for example relationship to a party, or interest in the subject-matter of the action. If a two-thirds remonstrance had been filed with the remonstrances for cause, we see no reason why they might not have been tried together, as there is no inconsistency in their being tried together. The two-thirds remonstrance is not strictly a pleading or answer. Cochell v. Reynolds, 156 Ind. 16, 58 N. E. 1029;Sauntman v. Maxwell, 154 Ind. 123, 54 N. E. 397. It is a special proceeding which the General Assembly may control, and after March 10, 1903, up to April 10, 1907, there was no right of two-thirds remonstrance. The most that could be said is that, owing to a new issue being tendered, the change of venue from the judge should have been granted. If the change of venue had been sought as to that issue, which did not exist when the trial on the other issue was begun, a different question might be presented, as to which we express no opinion, but to say generally that a change of venue from a judge, for a cause which did not render him ineligible, and make it manifestly improper that he should continue, may be granted in the midst of a trial, would be fraught with such consequences that we cannot assent to the proposition. If the claim is timely made, it cannot be refused, and upon affidavit filed at any time, and a showing of the discovery of the cause, even though it be after a rule of court has fixed a time within which it shall be applied for, it is error to refuse it, and the change must be granted. Ogle v. Edwards, 133 Ind. 358, 33 N. E. 95;Burkett v. Holman, 104 Ind. 6, 3 N. E. 406;Krutz v. Howard, 70 Ind. 174. The statute says that, upon a showing by affidavit of the “bias, prejudice, or interest of the judge before whom the said cause is pending,” the venue shall be changed. The language “before whom the said cause is pending” is, of course, broad enough to cover any period of the pendency of a cause, but it must receive a reasonable construction. If, as is now the rule, it is sufficient to state the statutory cause, or causes, and show lack of knowledge of the cause before, it would follow that the venue might be changed in the midst, or at the close of a trial, even though the bias or prejudice might to the mind of the mover arise from an adverse ruling of a court upon a question of law during trial, and it must be apparent that the statute is not open to that construction, and that such a rule would be fraught with the gravest consequences. The precise question has not been determined in this jurisdiction, but, upon principle, we think that it must be true that the venue may not be changed during trial, unless there is such showing made as to show the entire disqualification of a judge. True, every party is entitled to an unbiased and unprejudiced trier of fact and of law, and the presumption is of the unbiased and unprejudiced mind of a judge who acts in a cause, but, if on discovery of a condition or a state of facts on a trial which render it manifestly improper for a judge to act the submission should be set aside on his own motion, and the venue changed, or if this is not voluntarily done, a showing made cannot be ignored; but it should be more than the mental conclusion of a party on such an abstract question as bias or prejudice stated in the language of the statute. It could not in reason be required that the application should be made before discovery, and if the discovery of bias or prejudice arises during trial by a supposed extreme, or adverse ruling, and a party should be so impressed as that he would feel justified in making the affidavit, the progress of the trial courts might be arrested at any stage, and it is useless to argue the evils of such rule. We think the court did not err in refusing a change of venue from the judge under the facts in this case.

Appellant's contention as to the second proviso of section 3 of the act of 1907 not being properly embraced in the title of the act we think is untenable. The title is general, and embraces every allied subject incident to the subject of ditches. It is next argued that the title of every act revised or amended shall be set forth and published at full length. In this counsel are mistaken. The title need not be set forth and published. The act revised or section amended must be. It is sufficient that the subject-matter and general character, and not all matters properly connected therewith, be embraced in the title. Kaufman v. Alexander (Sup., at this term) 88 N. E. 503;Advisory Board v. State, 170 Ind. 439, 85 N. E. 18;Knight & Jillson Co. v. Miller (Sup.) 87 N. E. 823. The act does not purport to be a revision or amended act, but a complete and independent act, under the title “An act concerning drainage and repealing laws in conflict,” and under that title all germane subjects are properly embraced. State v. The Board, 170 Ind. 595, 85 N. E. 513; Knight & Jillson Co. v. Miller, supra. There is nothing in the point as applied to this case that an act which has been repealed cannot be amended. There is no pretense of amending any statute in this act. The word “act” in the last clause of section 1 should plainly be read section.” The context makes that proposition clear, and we are required to so read it. Jocelyn v. Barrett, 18 Ind. 128; Am. & Eng. Encyc. (2d Ed.) 655. We have here no question of vested rights or of the repealing clause taking away any right of appellants, both for the reason that, being a special statutory proceeding, the right may be taken away, and for the further reason...

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13 cases
  • Martin v. Ben Davis Conservancy Dist., 29624
    • United States
    • Supreme Court of Indiana
    • October 2, 1958
    ...Ind. 364, 90 N.E. 881. An Act entitled 'An act concerning drainage and repealing laws in conflict' was held proper in Thorn v. Silver, 1910, 174 Ind. 504, 89 N.E. 943, 944, 92 N.E. 161; and an Act entitled 'An Act concerning taxation and declaring an emergency' was held not too broad a titl......
  • State ex rel. Hobbs v. Claycombe, 29132
    • United States
    • Supreme Court of Indiana
    • April 6, 1954
    ...517, 5 N.E. 663; Burkett v. Holman, supra [104 Ind. 6, 3 N.E. 406]; Daniels v. Bruce (1911), 176 Ind. 151, 95 N.E. 569; Thorn v. Silver (1909), 174 Ind. 504, 89 N.E. 943, 92 N.E. 161.' State ex rel. v. Leathers, Judge, 1925, 197 Ind. 97, 102, 149 N.E. 900, Our present statute on change of v......
  • McKee v. Hasler, 28689
    • United States
    • Supreme Court of Indiana
    • May 9, 1951
    ...the improvement to a degree in excess of the effect upon the property in the city generally.' (Our italics.) In Thorn v. Silver, 1910, 174 Ind. 504, at page 521, 89 N.E. 943, 949, 92 N.E. 161, this court, in considering whose lands would be affected by the construction of a drain, said: 'Th......
  • Armstrong v. Oster
    • United States
    • Supreme Court of Indiana
    • April 25, 1919
    ...proceeding contains the names of two-thirds of such affected property owners is fatal to the drainage proceedings. Thorn v. Silver, 174 Ind. 504, 89 N. E. 943, 92 N. E. 161. The petition in this case was filed July 8, 1916, and the day set for docketing was August 7, 1916, and on the same d......
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