
    FREEMAN v. ORTIZ.
    (Supreme Court of Texas.
    Feb. 12, 1913.)
    Venue (§ 72) — Motion fob Change — Hearing and Determination.
    Where an application for a change of venue on the ground of local prejudice was overruled after a full hearing, and a few days later the same party presented a similar application on the same ground in another action, without any showing that the testimony in its support would he any different from that submitted on the previous application, the trial judge was justified in refusing to hear the application, since the denial of the first application was an adjudication that such party could obtain a fair and impartial trial in that county, not only in that case, but in any case; and the rule that the court is confined to the testimony presented, and may not, by means of judicial knowledge, consult the facts of another case, applies only to the trial of the issues, and not to the determination of the question whether the court will try the issues.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 127; Dec. Dig. § 72.)
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by Felix Ortiz against T. J. Freeman, receiver of the International & Great Northern Railroad. Company. A judgment for plaintiff was affirmed by the Court of Civil Appeals, Fourth District, and defendant brings error.
    Affirmed.
    John M. King, of Houston, and F. C. Davis and Hicks & Hicks, all of San Antonio, for' plaintiff in error. Anderson & Belden and Carter & Lewis, all of San Antonio, for defendant in error.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PHILLIPS, J.

The question for decision in this case is the correctness of the action of the trial court in refusing to ■ hear an application for a change of venue, made by the defendant in the terms of the statute and duly contested by the plaintiff. It appears that a few days before, in another case against the same defendant, in which he was represented by the same counsel, a full hearing of a like application therein made by the defendant was had by the court, extending over a period of 3 days, at which the testimony of 21 witnesses in behalf of the application was adduced, which, at the conclusion of the hearing, was overruled. When the application in the present case was presented, the defendant’s counsel made no statement as to whether the testimony to be offered in its support would be the same or different from that submitted at the previous hearing. Under this situation the trial judge felt justified in refusing to hear the application, and declined to do so.

The right to a hearing is fundamental and, as administered in the courts, requires, when duly tendered, a judicial examination of every issue that, according to established procedure, may affect the attainment of a legal trial, and in such a trial determine the cause according to law. Because of a jealous concern that every cause be determined upon its own merits, and to preserve the rights of parties from the hazard of a decision upon other than sufficient proof then and there legally adduced, the court is confined to the testimony presented, and may not by any means of judicial knowledge consult the facts of another case in arriving at its judgment.

This is a safe and wholesome rule, but in its very nature it relates to a trial of the issues in a case. It is not conclusive of the right or duty of the court in the determination of a matter that in no wise involves the merits of their trial, but concerns solely a condition which affects a party generally, and his obtaining a fair trial, not merely in the particular case, but in any case. The decision of a question of that character, as applied to a given time, necessarily determines it for such time with reference to any trial to which he may be a party, unless it be shown that by reason of further or different proof, proposed to be offered, the court’s decision of the question in relation to a later trial will, upon another hearing, be different. Because a party cannot be denied a hearing in such a matter, where it is duly presented, it does not follow that he is entitled to an immediate second hearing in the same court in virtue alone of its being invoked with reference to another case. Such a question is apart from the case and not of it. Its trial is in no sense a trial oí the case, but is had for the purpose of the court’s determining whether it will try the case. It is not to be confused with the issues of the case, and therefore falls without the rule referred to.

The requirement of the statute that the court shall try the issue formed by an application to change the venue and a contest thereof does not necessarily mean that the issue shall be tried at the same term of court in every case in which the party raises the question. This is apparent from the nature of the issue and its adjudication. In its order or judgment the court determines the status of the public mind in the county at that time toward the particular party plaintiff or defendant. It is not an adjudication of its status toward him in respect only to the trial of the case in which the application is filed, but that in such county he can or cannot then obtain a fair and impartial trial; that is, such a trial in any case. If a similar application is made in the same court by the same party in another case a few days later, with no proposal to submit any further • or different proof from that just heard by the court, and upon which, after an extended hearing, it has determined the question, is the court required to again hear and determine it? We think not. If so, it would be required to formally hear a third application, or a fourth, upon the same proof, and in every case during the term at which the party might interpose it, to the obstruction of its business and the abuse of its powers. If, upon the presentation of the subsequent ap-lilication, it is proposed to offer additional or different proof from that upon which the court acted in the previous hearing, it would be the undoubted duty of the court to hear tbe application, because of a possibly different result on that account. But where this is not done a hearing by the same court of the same question at what amounts to the same time amply secures to the party every right he can justly claim. I-Iere the defendant did not propose to offer any further or different proof than that submitted at the previous hearing had only a few days before, and under any view he is not shown to have suffered any substantial injury.

The judgment of the Court of Civil Appeals and that of the District Court are accordingly affirmed.  