Hamilton v. Smart

95 P. 836, 78 Kan. 218, 1908 Kan. LEXIS 40

Opinion

Per Curiam:

In an action brought by Mary Alice Hamilton against the city of Ottawa she moved for a change of venue, upon the ground that the district judge was disqualified by reason of being a resident and taxpayer of the city. The motion was denied, and thereupon the plaintiff applied to this court for a writ of mandamus to compel that court to grant a change of venue. She insists that the district court committed error in denying her application for a change of venue. It is plausibly argued by counsel for defendant that ownership of property and residence within a city do not constitute such an interest as disqualifies a judge, but, however that may be, if an error was committed in refusing a change of venue it may be corrected in an ordinary appellate proceeding. The extraordinary remedy of mandamus can not be employed when an effective remedy may be had in a proceeding in error. (Mason v. Grubel, 64 Kan. 835, 68 Pac. 660.)

The writ is denied.