Wheeler v. City of Indianapolis

• Decision Date: 17 May 1929
• Docket Number: No. 24605.,24605.
• Citation: 166 N.E. 433,201 Ind. 415
• Parties: WHEELER v. CITY OF INDIANAPOLIS.
• Court: Indiana Supreme Court

201 Ind. 415

166 N.E. 433

WHEELER

v.CITY OF INDIANAPOLIS.

No. 24605.

Supreme Court of Indiana.

May 17, 1929.

Appeal from Marion Circuit Court.

Proceeding by the City of Indianapolis for the purpose of constructing a drainage system. Altie G. Wheeler filed an appeal from an assessment made against her real estate, and from the judgment rendered she appeals. Reversed and remanded, with instructions.

Ward H. Watson and Sol H. Esarey, both of Indianapolis, for appellant.

Alvah J. Rucker and John K. Ruckelshaus, both of Indianapolis, for appellee.

GEMMILL, J.

This was a proceeding under section 8729, Burns' 1914 (section 10721, Burns' 1926), for the purpose of constructing a certain main drainage system within Marion county, both within and without the city of Indianapolis. The board of public works of the city of Indianapolis filed with the Marion circuit court a copy of all the proceedings had before the board in the matter of said public improvement. The court subsequently appointed a board of assessors, which board filed its preliminary or first assessment roll, then a corrected assessment roll, and later a final assessment roll. The appellant filed an appeal from the assessment made against her real estate. The court found that the property of the appellant was benefited by the improvement in the sum of $31,075.90, and rendered judgment accordingly. The appellant then filed a motion for a new trial, which was overruled.

On appeal, the following alleged errors are assigned: (1) The court erred in overruling the motion of appellant for a change of venue. (2) The court erred in overruling appellant's motion for a trial by jury. (3) The court erred in overruling appellant's motion for a new trial. The first and second assignments of error are not well assigned as independent errors. The overruling of a motion for a change of venue, if erroneous, is a cause for a new trial, under the first statutory cause for a new trial; for it is an irregularity in the proceedings of the court, by which a party is prevented from having a fair trial. The ruling on the motion of appellant for a trial by jury also comes within the first cause set out in the statute regulating motions for new trials. However, the first and second assignments of error are stated as causes in the motion for a new trial.

Section 422, Burns' 1914 (section 442, Burns' 1926), in effect since 1881, provided as follows: “The court, in term, or the judge thereof, in vacation, shall change the venue of any civil action upon the application of either party, made upon affidavit showing one or more of the following causes: *** Third. That the opposite party has an undue influence over the citizens of the county, or that an odium attaches to the applicant, or to his cause of action or defense, on account of local prejudice.” In the instant case, the causes stated in the motion for a change of venue from the county were as follows: “(1) That the petitioner herein has an undue influence over the citizens of said county. (2) That an odium attaches to her cause of defense on account of local prejudice.” In support of said motion, she filed therewith and made a part thereof the affidavit of one of her attorneys.

[1][2][3][4] In a civil case, when a motion for a change of venue from the county is filed for a statutory cause, if it is supported by an affidavit in compliance with the statute and is timely filed, it is the imperative duty of the court to grant the change. Fisk v. Patriot & B. Turnpike Co. (1876) 54 Ind. 479;Krutz v. Howard (1880) 70 Ind. 174;Burkett v. Holman (1885) 104 Ind. 6, 3 N. E. 406;Rout v. Ninde (1889) 118 Ind. 123, 20 N. E. 704;Federal Cement Tile Co. v. Korff (1912) 50 Ind. App. 608, 97 N. E. 185;Huffman v. State ex rel. Barton (1917) 66 Ind. App. 105, 117 N. E. 874;Shaw v. State (1925) 196 Ind. 39, 146 N. E. 855;State ex rel. Wheeler v. Leathers, Judge (1925) 197 Ind. 97, 149 N. E. 900;State ex rel. McGarr v. De Baun, Judge (1926) 198 Ind. 661, 154 N. E. 492;Farmers' Deposit Bank v. State ex rel. Symons (1929) (Ind. App.) 166 N. E. 287.

In State ex rel. Wheeler v. Leathers, Judge, supra, which was an original action brought in this court for a writ of prohibition against Hon. James M. Leathers as special judge of the Marion circuit court, and in which the appellant herein was the relator, praying that he be restrained from further sitting and acting...