
    Snell v. The Cincinnati Street Railway Co.
    
      Change of venue — In suit by or against a corporation — Section BOSS, Revised Statutes — Not in conflict with State or Federal Constitution — Sufficiency of affidavit of applicant — Presumption of credibility of affiant — Rule as to evidence — Nature of order overruling application for change of venue — Error not waived, when.
    
    1. Section 5033, of the Revised Statutes, which, provides for a change of venue ‘1 when a corporation having more than fifty-stockholders is a party in an action pending in any county in which the corporation keeps its principal office or transacts its principal business, if the opposite party make affidavit that he cannot, as he believes, have a fair and impartial trial in that county, and his application is sustained by the several affidavits of five credible persons residing in the county,” is not in conflict with the state or federal constitution.
    2. It is not necessary, to entitle the applicant to the benefit of the statute in a case for which it provides, that his affidavit shall state the grounds of his belief that he cannot have a fair and impartial trial in the county in which the action is pending, nor that the sustaining affiants shall state the grounds of their belief. It is sufficient that the affidavit of the applicant state that he cannot “as he believes,” have a fair and impartial trial in that county. And his application is “sustained” within the purview of the statute, when there is filed the several affidavits of five credible persons 'residing in the county, stating that they entertain the same belief. When so complied with, the statute is mandatory.
    3. Unless the character of an affiant for truth is attacked, he will be presumed to be a credible person, and evidence in his support is not required nor admissible; but if attacked, it becomes a question for the court to determine whether he is a credible person, and unless found to be so, the application may be denied.
    
      4. Whether the action is one in which a corporation having more than fifty stockholders is a party, or is pending in the county where the corporation keeps its principal office or transacts its principal business, are questions for the determination of the court in which the application is made ; and if the statement of these facts in the affidavit is denied, the burden is on the applicant to establish them.
    5. An order overruling- an application for a change of venue is not an order made in a special proceeding which may bemade the foundation of an independent proceeding in error, but is properly reviewable on error prosecuted to the final judgment in the action. The error is not waived by proceeding to a trial of the action, without objection by the applicant. .
    (Decided May 9, 1899.)
    Error to the Circuit Court of Hamilton county.
    Action was brought in the court of common pleas of Hamilton county, by Charles B. Snell, against the Cincinnati Street Railway Company, a corporation organized under the laws of this state, to recover damages sustained by the plaintiff in consequence of alleged negligence of the defendant. The. court overruled a motion filed by the plaintiff for a change of venue, to which he took exceptions, and obtained a bill of exceptions showing that his motion was supported by his own affidavit, and the several affidavits of five other persons, residents of Hamilton county, and that no other affidavits or evidence was offered by either party on the hearing of the motion. The affidavit of the plaintiff is as follows:
    “Charles B. Snell, being duly sworn, says that he is the plaintiff in the above entitled action, now pending in the court of common pleas, of the said Hamilton county; that the defendant in the above entitled action is a corporation, and has more than fifty stockholders in the said Hamilton county, Ohio, in which said county the defendant keeps its principal office, and in which said county the said action is now pending, and that this affiant can not, as he believes, have a fair and impartial trial in the said connty. ’ ’
    The affidavits of the other five persons are substantially alike, and the following copy of one will suffice to show the character of all of them:
    “Lewis Stentz, a credible person, being duly sworn, says that he resides in the said Hamilton county, Ohio; that he is now and for one year last past, has been engaged in the business of life insurance, as managing agent of the Northwestern Life Assurance Company, and has resided for the past five (5) years in the city of Cincinnati, in the said county; that Charles B. Snell is the plaintiff in the above entitled action, now pending in the court of common pleas of the said Hamilton county; that the Cincinnati Street Railway Company, the defendant in the above entitled action, is a corporation and has more than fifty stockholders in the said Hamilton county, Ohio, in which said county the said defendant keeps its principal office, and in which said county the said action is now pending, and that this affiant believes that the said Charles B. Snell can not have a fair and impartial trial in the above entitled action in the said county.”
    The motion having been overruled, a trial was had to a jury upon the issues joined by the pleadings, which resulted adversely to the plaintiff; and from the judgment rendered on the verdict he prosecuted error to the circuit court, where the judgment was affirmed, and he now brings the case to this court. The only error assigned here and in the circuit court is the refusal of his application for the change of venue. Any other facts that may be deemed important will be stated in the opinion.
    
      
      John W. Wolfe and Thomas L. Miohie, for plaintiff in error.
    The-first question that arises is raised by the opinion of Judge Cox, of the circuit court, that the order overruling the motion for change of venue is a final judgment in the sense that error proceedings should have been taken from the over ruling of the motion. This was not the view of counsel for defendant in error.
    Section 6707, Revised Statutes, defines what is a final order, which may be vacated, modified or reversed.
    Clearly, an order overruling the motion for a change of venue did not, in effect, determine the action nor prevent a judgment. Further, “an order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment.”
    Clearly, an order denying a change of venue was not an order made in a special proceeding, nor upon a summary application in an action after judgment.
    An entry of this sort in a case is no more in a special proceeding than any other step or motion in the case, because the motion for a change of venue relates merely to the trial of the main cause of action,and the entry does not accomplish anything further than to determine the court in which the case shall be tried. Mix v. Kepner, 81 Mo., 93.
    The Missouri statute is very much like our secA tion 5032 of the Revised Statutes, which leaves to the court the exercise of reasonable and sound dis cretion in directing the change of venue, though in many states, the use of the word “may” in statutes, authorizing a change of venue, is deemed mandatory when the showing made entitles the applicant to the change.
    In some states where the practice allows error by exceptions, it would be proper to go to the Supreme Court on exceptions to the order denying the motions. Hilliard v. Beattie, 58 N. H., 112; Skelly v. Jefferson Branch Bank, 9 Ohio St., 607; St. Louis, Oak Hill & C. R. Co. v. Fowler, 113 Mo., 458; Dowling v. Allen, 88 Mo., 300; Turner v. Hitchcock, 20 Iowa, 310.
    The provision of section 5033 are very plain, and, as we claim, mandatory, leaving no discretion whatever in the court when the conditions of the statute have been met. Statutes regulating change of venue are common to most of the states of the union, and have been uniformly enforced by the various courts. Swan v. Bournes, 47 Iowa, 501; Peyton v. Johnson, 37 Neb., 886; Bachman v. Milwaukee, 47 Wis., 435; Buck v. Eureka, 97 Cal., 135; Porter v. Mann, 4 Hill (N. Y.), 540; State v. Superior Court, 9 Wash., 668; Bixby v. Carskadden, 63 Iowa, 164; Albert v. State, 66 Md., 325.
    In a number of states statutes authorizing a change of venue upon a prescribed showing are construed as mandatory. Vol. 4, Enel, of Pleading and Practice, 440 and 441, citing authorities from twenty-four- different states. Goodnow v. Litchfield, 63 Iowa, 275; Deere v. Bagleg, 80 Iowa, 197; Hanna v. People, 86 Ill., 243.
    The court will observe that section 5033, under which this application is made, follows section 5032. It is evident that the legislature intended to provide that in a certain class of cases the right to a change of venue should be established upon a prescribed showing.
    
      The presumption of law is that any court in this state will give a fair and impartial trial, and statutes providing for change of venue have been enacted in order to insure a trial without prejudice and without undue influence. The first care of the law is to secure to every litigant a fair and impartial trial.
    It is not a question of the county in which the trial takes place, but of the constitutional right of every litigant to a fair and impartial trial. Questions of inconvenience or delay or additional expense are not arguments with a court in construing the law, although such arguments might be addressed to the legislature.
    The constitution of the state of Ohio confers no jurisdiction whatever on the court of common pleas in either civil or criminal cases. It is made capable of receiving jurisdiction in all such cases, but can exercise none until conferred by law. Stephens v. State, 3 Ohio St., 453; The State of Ohio v. Thomas McGehan, 27 Ohio St., 280.
    The jurisdiction of the courts of common pleas of this state is merely a matter of legislation. State ex rel v. Rabbitts, 45 Ohio St., 178; Hilliard v. Beattie, 58 N. H., 112; State v. Shaw, 43 Ohio St., 224.
    The different statutes of Ohio providing for change of venue are as follows:
    Sections 550, 5032, 5033, 5704, 7263.
    
      Paxton, Warrington da Boutet and Eittredge da Wilby, for defendant in error.
    The section 5033 is in conflict with article 1, section 2 and 16, of the bill of rights of our constitution, and also with article XIV, section 1, of the United States constitution. It does not furnish either “equal protection and benefit” or “remedy by due course of law” under our own constitution; and it denies “the equal protection of the laws” under the federal constitution. Coal Co. v. Rosser, 53 Ohio St., 12; Stale of Ohio ex rel. v. Ferris, Id., 314; Gulf Colorado and Santa Fe Ry. v. Ellis, 165 U. S., 150; Branville Coal Co. v. People, 147 Ill., 66; County of San Mateo v. Southern Pac. R. Co., 13 Fed., 722; County of Santa Clara v. Southern Pac. R. Co., 18 Id., 385; Shaver v. Pennsylvania Co., 71 Id., 931.
    Was not the second application for change of venue to be controlled by the rule that a decision of a motion heard upon the merits is conclusive of a subsequent motion in the same case, based upon the same grounds ? Meyer v. Wick, 15 Ohio St., 548; Day v. Mertlock, 87 Wisc., 577; Dick v. Williams 87 Wisc., 651; Parrot v. Hodgson, 46 Ill. App., 232; Obear v. Gray, 73 Ga., 455; Wingo v. Watson et al., 98 N. C., 482.
    In presenting the question of waiver we will not be understood as impliedly conceding that error was committed in overruling the motion for change of venue. We contend there was no error, and shall endeavor to prove it later. But we believe' plaintiff has precluded himself from questioning the correctness of the ruling.
    In the first place, it was not necessary for plaintiff to go to trial upon the merits of the cause before prosecuting a proceeding in error to reverse the order denying the change of venue; because that order was a final order within the meaning- of ■ Revised Statutes, section 6707. If it was a final order, then the claim made on behalf of plaintiff that there was nothing else to do after it was made except to go to trial on the merits, is unfounded. 
      Watson & Co. v. Sullivan, 5 Ohio St., 42; Harrison et al. v. King et al., 9 Ohio St., 388; Young v. Gerdes, 42 Ohio St., 102; C. S. & C. C. R. Co. v. Sloane, 31 Ohio St., 1; Burke v. Ry. Co., 45 Ohio St., 631; City of Lancaster v. Miller, 58 Ohio St., 558; Home Life Insurance Co. v. Dunn, 20 Ohio St., 175.
    It follows that there was no necessity for plaintiff to forego a proceeding in error and voluntarily enter upon and conclude a trial on the merits of the action; and that there was no right in him to do so and still to say he has not waived whatever error may have occurred in overruling the motion for a change of venue. It can not be that a plaintiff should thus be permitted to subject his adver" sary to such additional trouble and expense. The plaintiff had it in his power to waive the error and proceed to final trial. ■ What stronger evidence is needed to prove the waiver, than such voluntary conduct as this ? There were two courses open to him. One was to secure a reversal for error, if error there were; the other was to waive the error and go to final trial in the same tribunal. That 'he adopted the latter course is proved by the fact that he asked for the trial, obtained it and con" eluded it without an exception, either to the jury or to any action of the trial court. He proceeded on the apparent hypothesis that he was, when the trial took place, satisfied with everything that had occurred, as well as with what was passing.
    If a party does not resist as far as he can, his submission to a trial on the merits is a waiver of all previous errors. It need scarcely be said that if it was open to plaintiff to prosecute error to thé order denying the change of venue, he did not resist jurisdiction to try the merits as far as he was permitted. Andrews v. Youngstown, 35 Ohio St., 218; Collins v. Davis, 33 Ohio St., 567; Jones v. Booth, 38 Ohio St., 405; Matthews v. Davis, 39 Ohio St., 55; Skelly v. Bank, 9 Ohio St., 606.
    It is well known that in order to avoid waiver of error, the practice in the federal courts as well as our own, in cases where the right of removal of causes from state courts to federal courts has been wrongly denied, is never to proceed to trial upon the merits in the state courts after Such denial and before the proceeding in error for reversal has been disposed of, except under protest and exception. Removal cases, 100 U. S., 457; Railroad Co. v. Mississippi, 102 U. S., 135; Pacific R. R. Co. v. Ketchum, 101 U. S., 289; Hadley v. Dunlap, 10 Ohio St., 1.
    That proof of the acts of waiver, additional to those contained in the record, is properly brought before the court by the answer of defendant in error, is shown by the decision in Collins v. Davis, 32 Ohio St., 76, before cited.
    Our contention is that Revised Statutes, section 5033, vests judicial power and discretion to determine whether plaintiff’s affidavit is “sustained” by the “affidavits of five credible persons.” State ex rel. v. Wilson, 12 O. C. C., 636 ; 7 Circ. Dec., 17; Snell v. Cincinnati Street Railway Co., Com. Pleas Court, 2 S. & C. P. Dec., 669; Wright & Sauer, Admr., v. Cincinnati Street Railway Co., 4 O. N. P., 252; 7 S. & C. P. Dec., 19; Stermer v. The Cincinnati Street Railway Co., Superior Court, 5 N. P. Rep., 419.
    These are decisions, it is true, of courts inferior to this court. They are the only decisions upon the statute in question which we have been able to dnd. "We offer their reasoning.
    The logic of these decisions that there is discretion in the respect mentioned is that the belief or charge on the part of the plaintiff that he can not have a fair and impartial trial in the county, is issuable ; for otherwise the mere presence of five affidavits of as many residents, stating bare conclusions, would operate as an imperative mandate upon the court.
    This discretion can not be exercised unless the sustaining affidavits contain facts from which the court itself, instead of affiants, can deduce conclusions as to whether or not such a trial can be had. Facts of a probative or evidential nature are • the essential conditions precedent upon which any hearing and determination can take place.
    Indeed the ordinary meaning of' the words “sustained” and “credible” imports the necessity to produce facts from which the court itself may determine the correctness of the conclusion stated in the plaintiff’s affidavit. Anything less than this would make the repetition of a conclusion its only test of correctness. This is a contradiction of judicial discretion and determination. Can it be that the court is bound to accept affidavits of interested counsel as the affidavits of credible persons ?
    We shall derive aid here from the federal statutes and decisions concerning removals of certain cases from state courts to federal courts wherever it is “made to appear” that “from prejudice or local influence” justice can not be obtained in a state court. Carson & Rand Lumber Co. v. Holtzclaw, 39 Fed., 885; In re Pennsylvania Co., 137 U. S., 451; Mechanics' and Traders' Bank v. Loucheim, 8 N. Y., Supp., 520.
    It is said, our interpretation would make section 5033 the same as section 5032. But examination will show that the act from which section 5033 was derived was passed prior to the passage of the acts from which section 5032 came. The first one was passed April 24, 1852, (50 Ohio L., 100). The acts upon which section 5032 is founded were passed March 11, 1853 (51 Ohio L., 65), and February 10, 1857, (54 Ohio L., 10), respectively. The inevitable conclusion to be drawn from this legislation is that the first act was not broad enough to meet the needs expressed in the later acts. The first act authorized a change of venue only where a corporation having more than fifty stockholders was a party, no matter whether a fair and impartial trial could be had or hot in the county. Thus broadening the legislation at a later period does not warrant a conclusion that the later acts were designated or intended to change the meaning or purpose of the first act. And it would be a strange claim to urge that the first act should receive a different construction from that which its language imports, simply because the later acts were passed.
   Williams, J.

The application for the change of venue was made in this case under section 5033, of the Revised Statutes, which provides that: “When a corporation having more than fifty stockholders is a party in an- action pending in anjr county in which the corporation keeps its principal office, or transacts its principal business, if the opposite party make affidavit that he cannot, as he believes, have a fair and impartial trial in that county, and his application is sustained by the several affidavits of five credible persons residing in such county, the court shall change the venue to the ad jacent county most convenient for both parties.” By the preceding section general provision is made for change of venue in all cases, “when it appears to the court that a fair and impartial trial cannot be had in any county where the suit is pending. ’ ’

It is urged at the outset that section 5033, is in violation of both the state and federal constitutions, because, it is said, it applies an exceptional rule for the change of venue in actions against corporations within its descriptive terms, different from that applicable to parties in other actions, and one not equally applicable to both parties in the same action, and thus denies such corporation the equal benefit and protection of the law, aud remedy by due course of law. We are unable to adopt that view. It has never been regarded as essential to the validity of remedial procedure that it should be applicable in all of its provisions to all persons or parties, alike. Different situations and conditions often render appropriate and necessary different provisions, the necessity or propriety of whieli rests largely in the legislative discretion. And, as corporations exist, and hold, or exercise their powers and franchises only under favor of the state, they are subject to all reasonable regulations which the legislative body may deem it proper to prescribe, from time to time, with respect to the places where they may sue and be sued, and changes in the place of trial, though these regulations be different from those applicable to individuals, or different for different classes of corporations, or for different conditions of corporations of the same class. Distinctions of this nature have not been infrequent since the adoption of the present constitution. Generally, actions against individuals must be brought in the county where the defendant resides or may be personally served with process; and generally, actions against corporations are required to be brought in the county in which the corporation is situate, or has its principal office or place of business, or an office or agent; while insurance companies may be sued in any county where the cause of action or any part of it arose, a mining’ corporation in any county in which it owns or operates a mine, and a railroad company in any county into which the road runs. Of a like nature are regulations for changes of venue. They are designed to secure to parties a fair and impartial trial of their causes, which is the ultimate and highest purpose of judicial proceedings ; and the extent to which such regulations may go, for the accomplishment of that purpose, is addressed toa sound legislative discretion, in view of the nature of the case to be provided for, and the probable conditions likely to arise.

In the enactment of this statute, the legislature, no doubt, was impressed with the belief that corporations with many stockholders and emploj^es, might possess such widespread local influence where their business is carried on, that it would operate to the prejudice of the opposite party in a trial in that locality; and it is but a natural inference from the absence of a provision for a change of venue on the application of the corporation where the opposite party is not a corporation of the same kind, that such provision was deemed unnecessary, since, in that case, a change would not be desired by the corporation, as it would be to its interest to have the trial in the county where its influence prevailed. Where, however, both parties to, the action are corporations of the kind referred to in the statute, either is entitled to a change of venue upon complying with its provisions, so that, the statute operates uniformly upon all parties in the same situation. In neither case, however, is any party deprived of the equal protection of the law, for each is assured of a fair trial, with equal opportunities to establish and enforce his rights; nor is the remedy by due course of law denied, because in the forum, to which the cause is removed, the trial is conducted in the same way, under the same mode of procedure, as in that from which it was changed, with all’ remedial rights of the parties unimpaired. The only complaint is that the trial will be attended with some inconvenience and additional expense; but in that respect both parties are equally affected, and must necessarily be so in any change of venue for any cause; and the objection is, we think, insufficient to annul a statute, otherwise unobjectionable, which, in the legislative estimation, was demanded in order to secure the impartial administration of justice. The principle of this statute is closely analogous to that of congressional legislation relating to the removal of causes from state to federal courts by which, in a suit between a citizen of a state in which it is brought and a citizen of another state, the latter only is authorized to have the cause removed to a federal court. The right is not given to the former, as remarked in Dillon on the Removal of Causes, page 14, “because it was not supposed that he would have any grounds to object that he was sued in the courts of his own state.” The validity of such legislation is well established.

This statute imposes no penalty or burden upon one suitor or class of suitors from which others similarly situated are exempt, as did the statute held invalid in Coal Co. v. Rosser, 53 Ohio St., 12; nor does it affect any right of property of some owners differently from others in the same sitúation, as did the act declared unconstitutional in State v. Ferris, Ibid, 314. In the first of those cases the act was held invalid because it exacted an attorney fee from a class of defendants to which parties in no other class of actions were subject; and in the other case the law failed because it laid a burden in the nature of a tax, unequally upon property. The principle of those eases does not apply here.

In giving construction to the statute, it is claimed in support of the judgments below, that to make a case for a change of vénue, the affidavit of the party who makes the application, and those of thefive persons filed to sustain it, must each contain a statement of the facts on which the affiant founds his belief that a fair trial Gannot be had in the county, in order that the court may determine whether satisfactory grounds of such belief are shown; and, that, in passing upon that question, as well as upon the credibility of the affiants, the court is clothed with a discretionary power to grant or refuse the application. That construction, it is obvious, would add materially to the statute, for it contains no requirement that the affiants shall show grounds for their belief that are satisfactory to' the court, nor state any grounds therefor. It is the existence of their belief when stated in the affidavits,. and not the existence of reasonable grounds for the belief, that fixes the right of the party to a change of venue in eases mentioned in the statute. It is, therefore, sufficient for the applicant to state in his affidavit that he. “cannot, as he believes, have a fair and impartial trial” in the county; and, the application is “sustained” within the purview of the statute, when there is also filed the affidavits of five credible persons residents of the county who state therein that they each entertain the same belief. When this is done, it is made the imperative duty of the court where the action is pending to ‘‘change the venue to the adjoining county most convenient for both parties.5 ’ There is no discretion, in this respect, lodged with the court; and the statute was purposely made so, for otherwise its effect would practically be the same as the preceding section, and it would avail nothing. If an attack be made upon the character of the affiants truth, the court must determine whether they are credible persons,and unless found to be so, the application may be denied. But in the absence of such attack, their credibility is presumed, and testimony in their support is neither required nor admissible. So, the application should not be granted unless the action be one that is within the' terms of the statute, that is, an action in which “a corporation having more than fifty stockholders is a party,” and is pending in the county where “the corporation keeps its principal office or place of business.” The statement of these facts in the affidavits is open to controversy, and when put in issue the burden is on the party making the application to establish them. But the statement of the affiants’ belief is not issuable. The affidavits filed in support of the plaintiff’s application were in due form, and sufficient in substance; and being uncontroverted, the plaintiff was entitled, of right, to have the venue changed to an adjoining county.

It remains to inquire whether, as contended in behalf of the defendant, the plaintiff’s right to prosecute error to the circuit court was barred or waived. This contention is based upon the claim that the order overruling the application was a final order in a special proceeding from which error should have been prosecuted within the statutory period after the order was made. That period had elapsed; but the proceeding in error was commenced within the required time after final judgment was rendered in the case. It seems clear the order was not one made in a special proceeding. The application was made in a pending civil action, and was one authorized to be made in such an action. It was a step taken in that action preliminary to its trial, and one which, to be of any avail, it was necessary should be taken before the trial. It was proper to save an exception, as was done, to the overruling of the application, and take a bill of exceptions to properly preserve the question thus raised, upon the record. The order, nevertheless, was but an interlocutory one in the progress of the case, which could not be made the foundation of an independent proceeding in error, but was properly reviewable on error prosecuted to the final judgment. And, for this reason, the plaintiff did not waive the error in the overruling of his application, by thereafter submitting to the trial of the action without objection. There was nothing else to be done except to dismiss the action; for until final judgment he could not have the error corrected, or be restored to his right to have his "change of venue.

With respect to the position advanced in argument that the plaintiff’s right was barred by a previous denial of a similar application to which no exceptions were preserved, it is enough to say, the record is insufficient to present the question. It does not appear upon what grounds the former application was made, or denied, nor whether it was made under this statute or the preceding section. Nor, was any objection made to the second application, or its consideration by the court. From the fact that the court entertained this application, considered and acted upon it without objection of any kind, it may safely be presumed that it was made upon different grounds, and, that there were sufficient reasons why the court should allow it to be filed, and pass upon it, and give the plaintiff opportunity to save the question by bill of exceptions.

Judgment of the circuit court, and of the court of common pleas reversed, and cause remanded to the common pleas with directions to grant the change of venue.  