Petition of Newlin

16 A. 737, 123 Pa. 541, 1889 Pa. LEXIS 680

• Court: Supreme Court of Pennsylvania
• Decided: January 21, 1889
• Docket: No. 000
• Status: Published

Opinion

Opinion,

Mr. Justice Wiluams:

This application is made under tbe act of March 30, 1875. The plaintiff sets out the facts which he alleges entitle him to a change of venue in the above-entitled* case; asserts that be has made an application to the Court of Common Pleas of Indiana county in due form for such change, and that his application has been refused; and prays tbis court to “ issue a writ of mandamus to be directed to said Hon. Harry White, president judge of the Court of Common Pleas of Indiana county, commanding him to make an order changing the venue in the aforesaid action.”

The act of 1875, after an enumeration of the several cases in which a change of venue should be made, proceeded in the second section to prescribe the manner in which the change should be applied for and made. It directs that the application shall be made to the court in which the cause is pending, or a law judge thereof in vacation, by petition setting forth the cause of the application and accompanied by an affidavit of the truth of the facts alleged therein. Notice must be given to the opposite party or his attorney of the application, and after hearing “ the said court or judge shall, if satisfied of the truth of the facts alleged,” award a change of venue. The duty thus imposed is judicial, not ministerial, in its character. The court or judge is required to hear the application, after reasonable notice to the other side, and if, or when, satisfied of the truth of the facts alleged, make an order changizig the venue. But what if the court or judge is not satisfied of the truth of the facts alleged? Clearly, until satisfied, the duty to make the order does not arise. If the court refuse to hear the application we may compel the performance of the duty to hear azid determizie, by the writ of mandaznus, but we cannot control the discretion, direct the belief, or correct the reasoning of the court or judge izi so summary manner. What is complained of in this case is not that the judge did not hear, but that, having heard, he decided in a manner which the plaintiff thinks was wrong; and he asks us to review and correct the conclusions of the learned judge upon a writ of mazidamus. This we cannot do, and for this reason the motion for the writ is refused.

This question is discussed in Dechert v. Commonwealth, 113 Pa. 229; Raudenbusch’s Petition, 120 Pa. 328, and the distinction taken here is recognized and stated with clearness.