Board of Commissioners v. Wellington Township

39 Kan. 137

• Court: Supreme Court of Kansas
• Decided: January 15, 1888
• Status: Published

Opinion

The opinion of the court was delivered by

Valentine, J.:

The only question necessary to be considered in this case is, whether the court below erred or not in refusing to grant an application for a change of venue to another district. The regular judge of the court for that district had formerly been of counsel in the case for the defendant in error, plaintiff below, and the application for the change of venue was made solely upon that ground. A brief history of the case is as follows: The plaintiff below filed its petition; the defendant below demurred thereto; one of the plaintiff’s attorneys became judge of the court; the defendant filed an application for a change of venue on that ground; a judge pro tern, was elected by the members of the bar of that court to try all cases which could not properly be tried before the regular judge of the district; the application for the change of venue was withdrawn; afterward the demurrer was also withdrawn, but the defendant at the time of withdrawing the same asked leave of the court to file an answer; such answer, duly verified by affidavit, and stating a defense, was tendered to the court, but the court overruled the motion for leave to answer, and the plaintiff then asked for judgment as upon a default for the full amount claimed in its petition; immediately thereafter the defendant filed another application for a change of venue, upon the ground that the judge of the court had been of counsel in the case, and called the attention of the court to the same; but the court, without taking any action upon the application for the change of venue, and over the objection and exception of the defendant, rendered judgment in favor of the plaintiff and against the defendant as upon a default for the full amount claimed by the plaintiff in its petition. All these proceedings were had before the judge pro tern. We think the court below committed error in ignoring the defendant’s application for the change of venue. The statute authorizing changes of venue to be taken in cases of this kind reads as follows:

“ Sec. 56. In all cases in which it shall be made to appear to the court that a fair and impartial trial cannot be had in the county where the suit is pending, or when the judge is interested or has been of counsel in the case, or subject-matter thereof, or is related to either of the parties, or is otherwise disqualified to sit, the court may, on application of either party, change the place of trial to some county where such objection does not exist.” (Civil Code, § 56.)

The only question arising under the facts of this case is, whether the defendant made the application for the change of venue within proper time; for it is admitted that if the application had been made within proper time the defendant would have been entitled to the change of venue. It is claimed by the plaintiff below, defendant in error, that the defendant below should have made the application for the change of venue at the earliest opportunity, which it is claimed was not done. It is also claimed that the defendant carried on a system of dilatory proceedings from the beginning to the end; proceedings merely for the purpose of delay. It is claimed that the defendant’s counsel, the county attorney, participated in the election of the judge pro tern., and thereby waived his right to a change of venue. It is also claimed that when the last application for the change of venue was filed all questions in the case had been settled, and nothing was left to be done in the case except to render a judgment therein upon the plaintiff’s petition as uporf a default. It is claimed that there were no issues of fact to be tried, and no questions of law to be settled, and that a change of venue would have been useless and could have accomplished no good purpose, nor any purpose except costs and delay.

judge — counsel in case- change of venue. We think that much that the plaintiff below, defendant in error, claims, has force; and yet we think the statute is imperative, and will permit a party to demand a change of venue in cases of this kind at any time, and whether the demand is reasonable or unreasonable, and whatever the court or the adverse party may think of it. It is not left to the discretion or judgment of either the court or the adverse party to determine whether the change of venue shall be granted or not; but it is left wholly in the discretion of the applicant for the change of venue to determine whether he will take a change of venue, or proceed with the case under a pro tem. judge. We do not think that there was any waiver of right in the present case. The pro tem. judge was not elected merely to try this case, but was elected to try all cases that could not properly be tried before the regular judge, and although the defendant’s attorney, who was such merely by reason of being the county attorney, participated in the election, yet he did so merely by virtue of his being a member of the bar of that court, and he may have had many other eases in which he was interested as well as in this, and could not well have refrained from participating in the election. In our opinion, in cases like the present, a party ordinarily has the right to demand a change of venue at any time up to the time of the trial, if issues have already been made up, and Up to the time of the rendering of the judgment, where no issues have been made up; and where no issues have been made up he has the right to demand a change of venue for the purpose that they may be made up and a trial had. There was no intention in this case, on the part of the defendant, to permit a judgment to be rendered as upon a default. The defendant claimed that no judgment could legally be rendered in the case; that the plaintiff’s petition itself did not state facts sufficient to constitute a cause of action, but that even if it did, still that the defendant had a good defense thereto upon the merits. The pro tem. judge passed upon the sufficiency of the petition when he rendered the judgment in the case, and this was after the application for the change of venue had been made. With reference to the granting of changes of venue, see the following cases: K. P. Rly. Co. v. Reynolds, 8 Has. 623; Herbert v. Beathard, 26 id. 746; Hegwer v. Kiff, 31 id. 636. For the error of the court below in ignoring the defendant’s application for the change of venue, the judgment of the court below must be reversed, and the cause remanded.

All the Justices concurring.