
    CASE 12 — PETITION—NEW TRIAL
    APRIL 21.
    Triplett vs. Scott.
    APPEAL PROM HARDIN CIRCUIT COURT.
    1. A change of venue in a civil action having been granted by the judge of another circuit to a county in another adjoining judicial district, on the affidavit alone, of the party applying for the change — such change of venue, although irregular, was not void.
    2. On the motion of the adverse party to remand the case, when the change of venue had been irregularly granted, the party obtaining it supplied the necessary affidavits to authorize the change, as provided in section 21, act of March 5, 1860 (Myers' Sup., 82); and, thereupon, the circuit court properly refused to remand the case. In this case the change of venue was obtained on account of objections to the judge of the court, &c., in the county in which the action was brought.
    3. A new trial is granted in this case on account of the unavoidable nonattendance of defendant’s attorney; the defendant residing in a remote county, and having a good defense and no knowledge of the non-attendance of his attorney. See opinion for facts and circumstances.
    James Stewart,
    Coeer & Marriott, and
    I. & J. Caldwell, For Appellant,
    CITED—
    
      Civil Code, sec. 579, subsec. 7.
    1 Bush, 102; Dillingham vs. Mudd, <§*c.
    
      Act of March 5, 1860, Myers' Sup., 78.
    
      Act of February 15, 1856, 1 Slant., 234.
    6 B. Mon., 246; Gorham vs. Luckett.
    
    
      Act of 1799,2 M. fy B., 861.
    
      John Mason Brown and
    C. G. Wintersmith, For Appellee,
    CITED—
    
      Myers’ Sup., 81; Rev. Slat., subsecs. 3, 6, sec. 11, title 19, 1 Stant., 234.
   JUDGE ROBERTSON

delivered the opinion op the court:

The appellant, Lewis Triplett, brought an action in the Adair circuit court against S. G. Suddarth, of that county, and W. T. Scott, of Lexington, Kentucky, for damages charged on a contract of partnership between them for the commendation and sale of Triplett’s patent right, as inventor of a carbine gun.

The summons to Adair, and that also to Fayette, were •both returned executed in time for trial at the November term, 1867, of the court; and at that term, Suddarth having answered, and Scott not appearing, a jury sworn to try the issue on Suddarth’s traverse and assess damages against Scott, returned a verdict against Suddarth for fifty dollars, and against Scott for seven thousand five hundred dollars.

Shortly after the expiration of that term, Scott filed a petition in equity for a new trial and an intermediate injunction. . Judge Newman, of an adjoining circuit, having granted the injunction, Scott afterwards presented to him a petition for a change of venue, verified by his own affidavit only, and alleging that Triplett had so prejudiced the judge and people of Adair, and enlisted the bar against him, as to leave him no reasonable prospect of an impartial trial in- that circuit. On that presentation, with notice, judge Newman ordered a change of venue to Hardin county, in another circuit, but not the nearest to Adair; and, on the payment of the legal fees for transmission within ten days succeeding, the receipt of the order by the Adair clerk, the record was transferred to the clerk of the Hardin circuit court. Triplett appeared in that court and made a motion to remand the case, on the ground that the petition, as verified, did not authorize the change to Hardin; whereupon Scott filed two other affidavits corroborative of his own, and moved for another order changing the venue from Adair circuit. The court having overruled both motions, Triplett demurred to the petition for a new trial, which the court overruled; and Triplett refusing to answer, a judgment was-rendered perpetuating the injunction and granting a new trial; and Triplett appealed.

In revising the judgment, we shall consider briefly two questions only — 1st. Was the change of venue lawful ? 2d. Was the final judgment right?

In this case it is not necessary to decide whether the first and second sections of the act of February 15, 1856 (1st Digest, p. 234), is constructively repealed by the act of March the 5th, 1860, “ to amend and reduce into one the laws in relation to changes of venue;” for, however that may be, the change, as finally adjudged, was sustained by the twenty-first section of the latter act.

If the act of 1860 be the only law applicable to the petition on wrhich the judge ordered the change of venue, the order was irregular and erroneous, because the petition was not supported by the number of affidavits required by that act; but, as the judge had general jurisdiction over changes of venue in civil cases, his order, however erroneous, was not void, but correctable on the motion to remand; and we may presume that he might have sustained the motion to remand had not the requisite number and character of supplemental affidavits been filed on that motion, and also on the reiterated motion for the change; but as the record was then in the Hardin circuit court, and Triplett was present, and Scott’s affidavit, as then fortified, would have entitled him to another order like that first made, the circuity of remanding, and, at the same time, frustrating that order by another order for a change of the venue to the same county of Hardin, would have been too absurd, and even ludicrous, for judicial propriety or gravity. All that was then necessary or proper was to confirm the original order, retain the record, and overrule the superfluous motion of each party, as the court did; and nothing appearing, or being even suggested to the contrary, this court presumes that the circuit court, as the said twenty-first section authorized, adjudged that Hardin was the nearest county in which “ a speedy trial could be had.” We, consequently, adjudge that the case was legally in the Hardin circuit court, which, therefore, had jurisdiction to render the judgment appealed from.

The allegations of the petition for a new trial, admitted as true by the demurrer, show that Scott diligently engaged, as his counsel to defend him, ex-Governor Bramlette, of Louisville, who practiced regularly in the Adair circuit court, and furnished him with his grounds of defense, and all the essential facts and documents to enable him to prepare the proper pleadings and make a successful defense; that Bramlette prepared to leave home for Adair in time to make the necessary preparation and defense; was, the night before he intended to start, stricken down by sudden sickness, which confined him to -his room, and incapacitated him to communicate with Scott or any attorney during the continuance of the term,; and that Scott, confiding in Bramlette’s attention to the case, and his ability to do so effectually without the aid of his own presence, did not attend the court, and had no intimation of Bramlette’s condition and non-attendance until after the expiration of the term; and the admitted allegations also show a sufficient defense for defeating the action.

As Bramlette was prepared and authorized to file an answer and make complete defense in Scott’s absence, |3cott’s non-attendance should not be considered culpable negligence, especially as he lived so remote from the court, and as, moreover, he had reason to expect that his co-defendant would also represent him.

The “ accident” to Bramlette is, therefore, as available to Scott in this case as if it had occurred to himself; and, according to both the common law and our Code of Practice, the petition presented a sufficient excuse for Scott’s technical default, and entitled him to a new trial as ordered.

Wherefore, the judgment for a new trial is affirmed.  