
    Cases 32, 33, 34 — PETITIONS ORDINARY
    March 17.
    W. C. Whitaker, jr. v. Thomas Reynolds. Same v. Emily Reynolds. Same v. Isaac Reynolds.
    APPEALS FROM HART CIRCUIT COURT.
    1. All the plaintiffs or all the defendants must join in a . motion for a change of venue in a civil action.
    In such motions all the plaintiffs or defendants constitute but one party.
    
      On the motion of one of five defendants, which was resisted by the other foür, the circuit court erroneously changed the venue in these cases from Barren to the Hart Circuit Court, and on the appeals of one of the defendants the judgments rendered in the latter court against the five defendant's are reversed as to him, with directions to that court to remand the actions to the Barren Circuit Court.
    P. B. MUIR and DAWSON & MARTIN for appellant.
    1. Appellant was not present in person or by counsel at the trials in the Hart Circuit Court, and therefore there was no waiver, by him, of his right to make objection to the jurisdiction of that court.
    2. The change of venue, made on the application of only one of the five defendants, from the Barren to the Hart Circuit Court was null and void. (Art. 1, chap. 12, Gen. Stat.)
    The word “party ” as used in section 1, article 1, chapter 12, General Statutes, means the, adverse party, or the opposite side, however numerous the persons who may compose that side.
    LEWIS McQUOWN for appellees.
    1. The word “ party,” used in section 1, chapter 12, General Statutes, means any party to the record; and if such party make it appear that he can not have a fair trial, on account of the causes mentioned in the 1st section of the statute, he is entitled to a change of venue.
    2. The words “ may have a change of venue,” in the 1st section of the statute, impose an absolute duty, and not merely a discretionary power upon the court; and in such cases the word may is construed to mean shall. (Sedgwick on Construction, page 377.)
    3. The county to which the case is changed, the term, and conditions upon which the change is made, are matters about which the court exercises its discretion for the protection of all parties. (Sec. 4, chap. 12, Gen. Stat.)
    4. The purpose of the legislature in enacting this statute was to relieve any party to the record of the hardship of a trial in a county where either of his adversaries has an undue influence, or where odium is attached to such party, his cause of action, or defense
    5. The intention of the legislature is collected from the occasion and necessity of the law, if its words are obscure. When this intention is discovered, it should be followed with reason and discretion. (Potter’s Dwarris, 208, note 23.)
    6. When there are a number of parties, plaintiffs or defendants, the court, on motion of one, may change the venue of the whole case. (Waller v. Logan’s heirs, 5 B. Mon. 528; Van Dyke v. Battle et al., 1 Stewart, 218.)
    7. The statute now in force, and those that have preceded it in Kentucky, only contemplate a change of the whole case. (Littell & Swigert, 1231; Morehead & Brown’s Statutes, 1524; 1 Stanton’s Rev. Stat. 230; Myers’s Supp. 80.)
   JUDGE ELLIOTT

delivered the opinion oe the court.

As these cases each involve the same questions they will be considered together.

The above-named Thomas, Emily, and Isaac Reynolds each brought a separate action against John Wyatt, Edgar Wyatt, A. Whedon, W. R. Pedigo, and appellant, claiming $10,000 damages. These actions were brought in the Barren Circuit Court.

While these suits were pending in the Barren Circuit Court, A. Whedon made application for a change of venue. His motion was resisted by the plaintiffs, and all his co-defendants in the three suits. On hearing, the court not only changed the venue so far as Whedon was concerned, but changed the venue of all three, of the suits, and as to all the parties, to the Hart Circuit Court, and the appellant and his other co-defendants excepted.

On a trial in the Hart Circuit Court, one of the appellees obtained judgment against appellant and his co-defendants for $10,000, another for $5,000, and the other for $1,000, and from these judgments he appeals, and insists that, as he was sued in the Barren Circuit Court, and as to him no change of venue was ever asked or assented to, the order by which the venue was changed to the Hart Circuit Court was void.

By section 1, article 1, chapter 12 of the General Statutes it is provided that “ A party to any civil proceeding triable by a jury in a circuit court may have a change of venue when it appears that, owing to the undue influence of his adversary in the county, or to the odium which attends himself or his cause of action or defense, he can not have a fair trial.”

By section 6, where the venue has been changed, it is made the duty of the clerk to transmit all of the original papers and copies of all the orders in the suit to the clerk’s office of the circuit to which it has been changed, and this provision indicates very clearly that, when there is more than one plaintiff or defendant to a suit, the venue can not be changed as to some of the plaintiffs or defendants and retained and tried as to the others at the circuit where brought.

When the venue of a suit is changed, that all the records and litigants go with it, we' think is certain from the provisions of the statute on the subject, and we therefore come to the conclusion that the statute only contemplates two parties in motions for changes of venue in civil suits — the one suing and the other the sued party — without regard to the number of either, and if the suing party is composed of a plurality of persons, they must all join in the motion for a change of venue; and so, if the sued party is composed of more than one person, the petition should be in the name of all of the defending litigants, because, so far as the right to take a change of venue is concerned, they constitute but one party.

The statute seems to treat the suing side of the litigation as one party and the sued side of the litigation as the other party, for when the statute speaks of parties it applies the term to both the suing and sued class of litigants, as for instance, in section 4 it is said “ a change of venue shall be made to the circuit court of an adjacent county most convenient to the parties to the action, their witnesses, and attorneys, to which there is no valid objection,” etc.

Thus we see that parties, as used in the statute, refers to the two classes of litigants, both plaintiffs and defendants, and embraces them both, and the word party refers to one class of the litigants, that is the plaintiffs or defendants.

According to the argument of the counsel for appellees, if one of the defendants in an action, where five are sued, makes the affidavit and proof that he can not get justice in the court where sued, he can drag four of his co-defendants for trial into a county where they are equally confident they can not get justice.

We think that such a construction of the statute would be opposed to any fair deductions from its provisions, and although we confess that the legislative intention is not made as manifest as it perhaps should have been, we conclude that the most just and reasonable interpretation of the statute is that it contemplated each class of the litigants as a party, in motions for changes of venue, and if the suing class wishes such change it must apply in a body for it, and so with the sued class.

If one litigant can, because there is undue prejudice against him in a county, change the venue and force four of his co-defendants against their will into a trial in a county where there is undue prejudice against them, then the statute which inust have been intended to subserve the ends of justice would have precisely the contrary effect.

This construction of the statute seems the more reasonable because when the legislature undertook in the same chapter of the statute to provide for changes of venue in criminal cases, it allowed each defendant to apply for and obtain a change of venue, and further provided that where several were indicted and a part only of the defendants obtained a change of venue, a copy of the indictment, and not the original, together with a copy of the orders in the case, should be sent to the office ,of the clerk of the court to which the venue had been changed.

We confess the language of the statute is not clear, but we think our interpretation is the most rational and correct one.

Wherefore each of the foregoing judgments as to appellant is reversed, and cause remanded with directions to the lower court to remand the same to the Barren Circuit Court.  