Wheeler v. City of Indianapolis

• Decision Date: 16 May 1929
• Docket Number: 24,605
• Citation: 166 N.E. 433,201 Ind. 415
• Parties: Wheeler v. City of Indianapolis
• Court: Indiana Supreme Court

166 N.E. 433

201 Ind. 415

Wheeler v. City of Indianapolis

No. 24,605

Supreme Court of Indiana

May 16, 1929

Petition for Rehearing Dismissed December 6, 1929, Reported at: 201 Ind. 415 at 419.

1. NEW TRIAL---Causes for New Trial---Denial of Change of Venue.---The overruling of an application for a change of venue, if erroneous, is a ground for a new trial under the first cause enumerated in the statute (610 Burns 1926), it being an irregularity in the proceedings of the court by which a party is prevented from having a fair trial. p. 417.

2. CHANGE OF VENUE---Statute is Mandatory---Imperative Duty of Court to Grant Change.---In a civil case, when a motion for a change of venue from the county, assigning a statutory cause is timely filed and properly verified, it is the imperative duty of the court to grant the change. p. 418.

3. CHANGE OF VENUE FROM COUNTY---Affidavit for Change---Who may Make.---An affidavit for a change of venue from the county can be made by a party to the suit or by his agent or attorney. p. 419.

4. CHANGE OF VENUE---Statute Applicable to Drainage Proceedings---Exception.---The statutory provisions for a change of venue in civil actions (422 Burns 1926) are applicable to drainage proceedings except where the drainage statute specifically denies such application. p. 419.

5. MUNICIPAL CORPORATIONS---Drainage System Within and Without City---Change of Venue may be Had.---In a proceeding under 10721 Burns 1926 for the construction of a drainage system both within and without a city, the statutory provisions regulating changes of venue (422 Burns 1926) are applicable, since the statute authorizing such proceeding does not deny such application. p. 419.

From Marion Circuit Court (2,168); James M. Leathers, Special Judge.

Proceeding by the city of Indianapolis for the construction of a drainage system both within and without the city under § 10721 Burns 1926. Altie G. Wheeler took an appeal to the circuit court from an assessment made against her real estate, and, from the judgment there rendered, she appealed.

Reversed.

Ward H Watson and Sol. H. Esarey, for appellant.

Alvah J. Rucker, John K. Ruckelshaus, Jr., William Bosson, William T. Bailey, Merle N. A. Walker, Oren S. Hack, Edward H. Knight and Smiley N. Chambers, for appellee.

OPINION

Gemmill, J.

This was a proceeding under § 8729 Burns 1914 (§ 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 (§ 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.

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, etc 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. (1917), 66...