Witter v. Taylor
| Decision Date | 30 November 1855 |
| Citation | 7 Ind. 87 |
| Parties | Witter and Another v. Taylor |
| Court | Indiana Supreme Court |
From the St. Joseph Court of Common Pleas.
The judgment is reversed with costs. Cause remanded.
A. G Deavitt for appellant.
W. G George, for appellee.
Taylor, assignee of Deming, sued Witter and Miller, partners, &c., on a promissory note. Trial by the Court. Finding and judgment for the plaintiff for 633 dollars.
During the progress of the cause, an exception was taken to the opinion of the Court in overruling a motion for a change of venue.
Witter, one of the defendants, filed an affidavit to the effect that Judge Egbert, before whom the action was pending in the Common Pleas, had been engaged as counsel for the plaintiff in the cause, as law partner of W. G. George, the plaintiff's attorney of record; and that, therefore, he believed that said defendant could not have a fair trial; requesting a change of venue to the St. Joseph Circuit Court.
While the motion for a change of venue was pending, Taylor, the plaintiff below, filed the affidavits of Nicar, his agent, and George, his attorney, controverting the fact chiefly relied upon in Witter's affidavit. It is not important to state the various motions and rulings which followed. The motion for a change of venue was overruled.
To this opinion the defendants excepted, and this is one of the errors assigned.
Applications for change of venue, in civil cases, are not addressed to the discretion of the Court. Like surety to keep the peace, they are measured more by the feelings of the party making the application, than by any distinctive features which the Court might recognize as a just ground of apprehension. If the affidavit is in substantial conformity to the statute, the change must be granted. The statute is explicit. The "may" as there used, is clearly imperative and not discretionary. 2 R. S., p. 74.
This is the reason attempted to be assigned by Witter, but the language of the statute is not strictly pursued. It is indeed alleged that judge Egbert had been of counsel, &c. But the words "prior to his election as judge", &c., are omitted. These words do not seem applicable to the present case. The chief fact to be alleged is the employment as counsel. If so employed, it would not seem to be very material when--whether before or after his election. For instance, the Common Pleas judge may practice in the Circuit and Supreme Courts. 2 R. S., 23. If, after the election of judge Egbert, this note had been placed in the hands of Egbert and George, as law partners, for collection; if they had sued in the Circuit Court and been nonsuited; if the suit were then instituted by one partner as attorney before the other as judge, no prudent litigant, whatever might be his faith in judicial integrity, could stifle his apprehensions. The supposed case would be clearly within the spirit and meaning of the law. And yet, like the case at bar, he could not say that the judge was of counsel before his election. The Courts would justly hold such a state of facts to be within the statute, and therefore entitling the party to a change of venue.
The affidavit explains why the belief of the judge's interest in the cause is entertained; namely, because he is the law partner of George, the attorney of record for Taylor.
The right of...
To continue reading
Request your trial