a continuance, it shall be at the costs of the party making the amend ment. The action of the trial court under this section will not be reversed, except in a clear case of injustice. Whitehall v. Lane, 61 Ind. 95. Parties can not recover back costs paid on obtaining a continuance. Tarpy v. Crutchfield, 38 Ind. 58. The affidavit under this section need not contain all the allegations necessary under the preceding section. Welcome v. Boswell, 54 Ind. 297. If a continuance is occasioned by reason of an amendment, the party amending should pay the costs. Makepeace v. State, ex rel., 8 Ind. 41. The affidavit must show that the facts can not be proven by other witnesses whose testimony can be as easily procured. Miller v. Harker, 96 Ind. 234. If the facts are fully proven by other witnesses, there can be no available error. Schlotter v. State, ex rel., 127 Ind. 493. The absence of a party or counsel may be, but is not usually a cause for a continuance. Bartel v. Tieman, 55 Ind. 438; Eslinger v. East, 100 Ind. 434; Yater v. Mullen, 23 Ind. 562; Davis v. Luark, 34 Ind. 403; Welcome v. Boswell, 54 Ind. 297; McBride v. Stradley, 103 Ind. 465; Whitehall v. Lane, 61 Ind. 93; McClary v. State, 75 Ind. 260; Belck v. Belck, 97 Ind. 73; Railroad Co. v. Hawkins, 111 Ind. 549; Moulder v. Kempf, 115 Ind. 459. [1881 S., p. 240. In force Septemper 19, 1882.] 416. (412.) Causes for.-255. 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: First. That the judge has been engaged as counsel in the cause. prior to his election or appointment as judge, or is otherwise interested in the cause. Second. That the judge is of kin to either party. 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. Fourth. When the county is a party to the suit. Fifth. Showing to the satisfaction of the court that the convenience of witnesses and the ends of justice would be promoted by the change. Sixth. That the judge of the court wherein such action is pending, is a material witness for the party applying for such change. Seventh. When either party shall make and file an affidavit of the bias, prejudice, or interest of the judge before whom the said cause is pending. One or more co-parties can take a change of venue, and thus change the venue as to all. Krutz v. Howard, 70 Ind. 174. The words "either party" means all the parties on one side. Peters v. Banta, 120 Ind. 416; Griffith v. Dickerman, 123 Ind. 247. An affidavit based upon objections to the judge must be made and signed by the party in person. Stevens v. Burr, 61 Ind. 464. An affidavit that a party can not have a fair trial before the "regular judge of the court" is not sufficient. Palmer v. Poor, 121 Ind. 135. A party need not appear in person and apply for a change of judge. Firestone r. Hershberger, 121 Ind. 201; Wiltfong v. Schaffer, 121 Ind. 264. The affidavit for a change from the county need not be made by a party to the suit. Heshion v. Pressley, 80 Ind. 490. On a proper application a change of judge must be made. Fisk v. Turnpike Co., 54 Ind. 479; Manly v. State, 52 Ind. 215; Krutz v. Howard, 70 Ind. 174; Burkett v. Holman, 104 Ind. 6. A change from the county must be granted when the application is sufficient. Witter v. Taylor, 7 Ind. 110; Shattuck v. Myers, 13 Ind. 46; Rout v. Ninde, 118 Ind. 123; Brow v. Levy, 3 App. 464. If the affidavit states the ground of bias of the judge, and it is only on account of a legal ruling, the application may be denied. Hays v. Morgan, 87 Ind. 231. A change of judge can not be claimed in habeas corpus proceedings. Garner v. Gorden, 41 Ind. 92. When a judge has acted as counsel in a cause he should of his own motion call some other person to try the cause. Joyce v. Whitney, 57 Ind. 550. When a change of judge is granted the court alone determines who shall be called to try the case. Walter v. Walter, 117 Ind. 247. An attorney may be appointed as special judge. Chissom v. Barbour, 100, Ind. 1. The failure of a judge appointed to appear does not work a discontinuance. Glenn v. State, 46 Ind. 368. Change of venue is authorized in a claim against a decedent's estate. Lester v. Lester, 70 Ind. 201. The state may have a change of venue in bastardy suits but the relatrix can not take a change. Saint v. State, ex rel., 68 Ind. 128; State, ex rel., v. Smith, 55 Ind. 385. Changes can not be claimed in contempt proceedings. State v. Newton, 62 Ind. 517. In proceedings supplementary to execution, changes may be had. Burkett v. Holman, 104 Ind. 6; Burkett v. Bowen, 104 Ind. 184. And in divorce cases. Powell v. Powell, 104 Ind. 18; Evans v. Evans, 105 Ind. 204. And on complaints to try question of suretyship. Williams v. Fleenor, 77 Ind. 36. And on applications for sale of lands of decedents' estates. Scherer v. Ingerman, 110 Ind. 428. And on motion for an execution after ten years. Jaseph v. Schnepper, 1 App. 154. It is discretionary with the court to change the venue on account of the convenience of witnesses. Ringenberg v. Hartman, 102 Ind. 537. Courts may adopt rules relative to applications for changes of venue, but such rules must be reasonable, and not conflict with the statute. Redman v. State, 28 Ind. 205: Bennett v. Ford, 47 Ind. 264; Ringenberg v. Hartman, 102 Ind. 537; Bernhamer ». State, 123 Ind. 577; Jones v. Dipert, 123 Ind. 594; Railroad Co. v. Avery, 31 Ind. 277; Shoemaker v. Smith, 74 Ind. 71; Truitt v. Truitt, 38 Ind. 16; Kurtz v. Howard, 70 Ind. 174. When more than one change has been granted to a party, and he appears to the action in the last venue ordered, he can not afterward object to the jurisdiction of any of the prior courts or judges therein. Yater v. State, 58 Ind. 299. If an application for a change is filed in vacation but acted on in term, notice is not required. Scherer v. Ingerman, 110 Ind. 428. Errors in granting or refusing changes of venue are causes for a new trial. Berlin v. Oglesbee, 65 Ind. 308; Walker v. Heller, 73 Ind. 46; Knarr v. Conway, 53 Ind. 120; Mannix v. State, ex rel., 115 Ind. 245. If the application is filed after the time fixed for filing by the rules of the court, diligence must be shown to discover the cause for a change prior to the expiration of such time. Brow v. Levy, 3 App. 464. 417. (413.) Change from county-Costs-One change.- 256. When a change of venue is directed for any of the causes mentioned in the third, fourth, and fifth specifications of the preceding section, the court or judge shall designate the county to which the venue shall be changed (which may be in the same or in an adjoining circuit, as may be deemed best for the furtherance of justice), and shall prescribe the time within which the applicant shall pay the costs of the change; and the clerk of the court in which the suit is pending, as soon as the costs of the change are paid, shall forthwith transmit all the papers and a transcript of all the proceedings to the clerk of the court of the county to which the venue is changed; and the clerk of the proper court shall receive the papers and transcript, giving a receipt therefor, and docket the action in its order among the other causes of the court; and the action shall stand for trial at the first term, and shall be tried or otherwise disposed of in the same manner as if the cause had originated in that court. If the party fail to pay the costs of the change within the time prescribed by the court, he shall be taxed with all the costs made in the case up to the time of such failure, and shall not be entitled to a change of venue from the county. Only one change of venue shall be granted to the same party from the county, and only one from the judge. When for trial. Acts 1889, p. 255, Ell. Sup., section 17, post section 525. When a change of venue is granted but not perfected by the party, the court granting it may disregard the order and try the cause. Snyder v. Bunnell, 64 Ind. 403; Rogers v. Steven, 8 Ind. 464; Gower v. Howe, 20 Ind. 396. On a failure to perfect the change the papers may be ordered returned to the court granting same. Dooley v. Martin, 28 Ind. 189. See Railway Co. v. Wright, 68 Ind. 586. Failure of clark to transmit papers can not affect the rights of the parties. Cooper v. Arctic Ditchers, 56 Ind. 233. The penalty for failure to perfect change is the payment of all costs. Railway Co. r. Wright, 68 Ind. 586. If the costs are not paid within the time fixed the right to a change is lost. Railway Co. v. Grubb, 88 Ind. 85; Railroad Co. v. Smythe, 45 Ind. 322. When the papers are filed in the court to which the cause is sent, such court has exclusive jurisdiction of the cause. Railway Co. v. Wright, 68 Ind. 586. An appearance waives defects in the manner of granting or perfecting change. Smith r. Jeffries, 25 Ind. 376. It is only a transcript of the orders made in the court granting the change that is required to be made by the clerk. Smith v. Jeffries, 25 Ind. 376. The court may render judgment for costs for a failure to perfect the change, after the cause is dismissed. Lotz v. Scott, 119 Ind. 434. Parties may have one change of judge and one change from the county. Musselman . Pierce, 40 Ind. 120; Mershon v. State, 44 Ind. 598; Shriver v. Bowen, 57 Ind. 266; Musselman v. Pratt, 44 Ind. 126; Hutts v. Hutts, 62 Ind. 240. In a civil action, the venue may be changed to a county in another circuit. Cromie *. Hoover, 40 Ind. 49. Refusing a change of venue is cause for new trial, but can not be primarily assigned in the supreme court as error. Berlin v. Oglesbee, 65 Ind. 308. When a rule to plead is pending against a party, the court may suspend its action upon a motion to change the venue from the county, until it be complied with. v. Morgan, 56 Ind. 172. [1873 S., p. 221. In force March 10, 1873.] Risher 418. (414.) Payment to county of expenses of trial.-1. In all cases where there has been or shall be a change of venue from one county to another, the county from which the change of venue shall have been or shall be taken shall be liable to pay to the county to which such change shall have been or shall be taken all such expenses as shall have been or shall be incurred by such county to which such change shall have been or shall be taken, in consequence of such change, and in all cases, the fees paid by such county to the jury trying the case, and any of the regular panel not engaged in such trial, allowance to bailiffs, and all other expenses necessarily incurred by such county, and consequent upon such change of venue and the trial of such cause. Such expenses shall be audited and allowed by the court to which such cases shall have been changed; and such court shall certify such allowance to the auditor of the county from which the change of venue was first taken; and such auditor shall issue his warrant on the treasurer of the county for the amount so allowed and certified. So much of this section as applies to criminal cases was impliedly repealed by sections 1778 and 1779, R. S. 1881. State, ex rel., v. Board, 107 Ind. 39. When the expenses of the trial are certified by the court, the county auditor must draw a warrant therefor. Gill v. State, ex rel., 72 Ind. 266. This section, so far as it relates to civil cases, was not affected by sections 1778 and 1779, R. S. 1881. State, ex rel., v. Board, 121 Ind. 116. [1881 S., p. 240. In force September 19, 1881.] 419. (415.) Change from judge.-257. When the change of venue is granted for any of the causes named in the first, second, sixth, or seventh specifications mentioned in the above section [§ 412], the court or judge shall call a judge of any circuit, superior, or other court of general jurisdiction, or any judge of the supreme court, to preside in such case, and try the same; or, if it shall be difficult, in the opinion of the court, for any cause, to procure the attendance of such judge, the court, in order to prevent delay, may appoint any competent and disinterested attorney of this state, in good standing, to act as judge in said cause, who, if he consent to serve, shall be qualified as other judges, and his appointment and oath shall be filed with the clerk and entered on the order-book; and he shall have power to hear and determine said cause until the same is finally disposed of, or change the venue thereof in proper cases. See sections 1446, 1447, 1448. The reasons given for the appointment of an attorney as special judge can not be questioned. Chissom v. Barbour, 100 Ind. 1. It is wholly within the discretion of the court as to who shall be appointed to try the case. Walter v. Walter, 117 Ind. 247. When a special judge is appointed to try a cause he has complete control over the same through all its stages, and the adjournment of the regular term of the court does not affect such authority. Perkins v. Hayward, 124 Ind. 445. Special judges may grant time to file, and may sign bills of exceptions, after term. Beitman v. Hopkins, 109 The 4th section of the act of March, 1855, relative to the appointment of special judges, was not repealed by section 1383, R. S. 1881. State, ex rel., v. Murdock, 86 Ind. 124; Zonker v. Cowan, 84 Ind. 395; Bowlus v. Brier, 87 Ind. 391; Burrell v. State, 129 Ind. 290. The appointment of a special judge must be in writing. Evans v. State, 56 Ind. 459; Herbster v. State, 80 Ind. 484. Judicial powers can not be conferred by consent of parties. McClure v. State, 77 Ind. 287; Herbster v. State, 80 Ind. 484. If the judge of another court is called no written appointment is necessary. Wood *. Franklin, 97 Ind. 117. If a special judge fails to appear another judge should be appointed. Singleton v. Pidgeon, 21 Ind. 118; Arnold v. Norton, 42 Ind. 248; Hutts v. Hutts, 51 Ind. 581. If a judge does not complete the trial another judge should be appointed. Stinson r. State, 32 Ind. 124; Glenn v. State, 46 Ind. 368; Greenup v. Crooks, 50 Ind. 410. Objections to a special judge should be made at the trial, and can not first be made on a motion for a new trial. Feaster v. Woodfill, 23 Ind. 493; Huffman v. Cauble, 86 Ind. 591; Schlungger v. State, 113 Ind. 295; Greenwood v. State, 116 Ind. 485; Adams v. Gowan, 89 Ind. 358; Rogers v. Beauchamp, 102 Ind. 33. When the competency of a special judge is questioned he can not appoint another special judge. Cargar v. Fee, 119 Ind. 536. If objections to a special judge are not made when he first assumes jurisdiction, all objections are deemed waived. Lillie v. Trentman, 130 Ind. 16. 420. (416.) Pay of special judge.-258. When a judge is called upon to preside in the place of the regular judge, either at a regular or an adjourned term, whether selected from the bench or bar, he shall be allowed the sum of five dollars per day for the time actually served, and in going to and returning, to be paid as follows: On the presentation of an order made by the court for the allowance, specifying the time of service, supported by an affidavit of the special judge, that he actually served such time; and an affidavit of the regular judge, if any, stating the reason for the services of such special judge, the same shall be paid out of the county treasury for the time being, for which the county shall have credit on settlement of the treasurer with the state: Provided, That in all cases where a special judge shall be called, the compensation paid, as herein provided, shall be deducted by the auditor of state from the pay of such regular judge, except when such special judge is called to preside in cases on change of venue, or when such regular judge shall have a pecuniary interest in, be a party to, or be related to any party to said suit by blood or marriage, or may have been of counsel in any such cause pending, or may be absent on account of serious illness of himself or family. |