Walter v. Great American Indem. Co., 27301.

• Decision Date: 19 February 1940
• Docket Number: No. 27301.,27301.
• Citation: 25 N.E.2d 328,216 Ind. 500
• Parties: WALTER v. GREAT AMERICAN INDEMNITY CO.
• Court: Indiana Supreme Court

216 Ind. 500

25 N.E.2d 328

WALTER

v.GREAT AMERICAN INDEMNITY CO.

No. 27301.

Supreme Court of Indiana.

Feb. 19, 1940.

Proceeding by the Great American Indemnity Company, a corporation, against Albert Walter, in which plaintiff sought to be released as surety from official bond provided by defendant who was justice of the peace in and for German township, St. Joseph county. The plaintiff was released from bond and defendant tendered a new bond which court refused to approve. From judgment refusing to approve new bond and declaring defendant's office vacant, the defendant appeals.

Appeal dismissed.Appeal from St. Joseph Circuit Court; Dan Pyle, Judge.

P. C. Fergus and Joseph Talbot, both of South Bend, for appellant.

George Sands, of South Bend, for appellee.

SHAKE, Chief Justice.

This is the second attempt to appeal this case. See Great American Indemnity Co. v. Walter, Ind.Sup., 1939, 23 N.E.2d 586.

The appellant was a justice of the peace in and for German Township, St. Joseph County, and the appellee was surety on his official bond. The appellee filed a petition to be released from said bond, pursuant to section 49-134, Burns' 1933, Sec. 13085, Baldwin's 1934. Summons was issued and served, directing appellant to appear and file a new bond by a day fixed. Subsequently he tendered a bond which the court refused to approve, and he then filed a motion for a change of venue from the judge. That motion was overruled and the office was declared vacant. The appellant then made what is referred to in the transcript as an ‘oral motion for a new trial,’ which was likewise overruled, and this appeal followed.

It is assigned that the court below erred: (1) in overruling appellant's motion for a change of venue from the judge; (2) in sustaining appellee's petition to be released from the official bond; (3) in refusing to approve appellant's new bond; and (4) in overruling appellant's motion for a new trial.

We do not find it necessary to determine whether appellant was entitled to a change of venue from the judge in a proceeding of this character. If he were, the alleged error could not be independently assigned in this court. Refusal of a court to grant a change of venue can only be reviewed when it has been presented by a motion for a new trial. Knarr et al. v. Conaway et al., 1876, 53 Ind. 120;Scanlin v. Stewart et al. 1894, 138 Ind. 574, 37 N.E. 401,38 N.E. 401. The motion is not in the record and we are not advised as to what the grounds therefor were. There is no such...