
    W. A. Blackburn et als. vs. Horatio Hawthorne.
    1. Change of Venue in civil causes. The plaintiff or defendant in a civil' action, can change the venue upon his oath, that he cannot have a fair and impartial trial where the same is pending, supported hy three impartial and credible witnesses, that the facts and statements of the party applying, are true, if the presiding Judge shall be satisfied that the causes set forth, are good, and the truth thereof evident, and credibly supported.
    2. Same. Same. Counter affidavits not allowed. Upon an application for a change of venue, made in conformity to the requirements of the Statutes, the opposing party will not be allowed to present counter affidavits that the statements made by the party applying, are groundless.
    EROM CLAIBORNE.
    At the . May Term, 1867, the plaintiffs in error, made an application, in proper form, to change the venue, which was resisted by the defendant in error, who was allowed by the Court to read counter affidavits. The motion to change the venue was overruled, and a trial had, which resulted in a verdict of $6,000 for the defendant in error. Erom which, the plaintiffs in error, appealed to this Court. Judge James P. Swan, presiding.
    James T. Shields, for the plaintiffs in error.
    W. R. Evans, for the defendant in error.
   Shackelford, J.,

delivered the opinion of the Court.

This is an action of trespass vi et armis, brought in the Circuit Court of Claiborne County, against the plaintiffs in error, to recover damages for an alleged arrest and false imprisonment.

The declaration is in the usual form, to which the plaintiffs in error severally plead not guilty. The cause was submitted to a jury, at the May Term, 1867, and resulted in a verdict and judgment for six thousand dollars. A new trial was moved for, which motion was overruled. To the action of the Court, the plaintiffs in error excepted, and appealed in error, to this Court.

Before empaneling the jury, the plaintiff in error moved the Court for a change of venue, and filed the following affidavit: “The defendant, William Neal, makes oath in due form, in behalf of himself and the other defendants, that he verily believes, owing to the prejudice existing in the public mind against the defendants in Claiborne County, they cannot have a fair and impartial trial in said County; he, therefore, prays a change of venue in this case, in order that a fair trial may he hadwhich was duly sworn to in open Court, signed by him.

In support of this affidavit, he offered to the Court, and read, the affidavit of five citizens of the county, who made oath that they have heard and read the foregoing affidavit of William Neal, and from their knowledge of public sentiment in said county, they believe said affidavit is true in substance and fact; which was signed and sworn to in open Court. Upon the reading of these affidavits, the defendant ini error offered to read counter affidavits; to which the plaintiffs in error objected.

The objection was overruled, the counter affidavits were read, to. which the plaintiffs in error excepted. The Court refused to change the venue, and the case was tried, and resulted in the verdict aforesaid.

Many questions have been discussed in argument, but in the view we have taken of the action of the Ceurt, in permitting the reading of counter affidavits, upon the application to change the venue, it is unnecessary to notice them, except the action of the Court upon that point.

The right of trial by jury, is a part of our jurisprudence, and is regarded as one of the great bulwarks of civil liberty. The bill of rights declares, “it shall ever remain inviolate.” To carry out this provision, that every one entitled to have his cause tried by a jury, shall have a fair and impartial trial, the Legislature, with a view to effect this purpose, has provided by law, for a change of venue, where it appears to the Court, a fair and impartial trial cannot be had. By section 2836, of the Code, it is provided, “the venue may he changed in civil cases, by the plaintiff or the defendant, or both, but not more than once by each, except for causes1 not in existence when the first change was taken.” By section 2837, it is provided, the party applying for a change of venue, shall make a statement of facts in writing, under oath or affirmation, that he verily believes, that, owing to prejudice, or other causes, then existing, he cannot have a fair and impartial trial, in the county where the same is pending, the truth of which statement shall be verified and supported by the oath of at least three respectable persons. By section 2838, if the presiding Judge, on due consideration, should be of opinion that the cause set forth, is good, and the truth thereof evidenced and credibly supported, he shall order the change.

It was not contemplated by the Legislature, as we think, in the sections of the Code referred to, upon application to change the venue, that counter affidavits should be heard to resist the motion. The oath of the party, that he cannot have a fair and impartial trial, supported by three credible witnesses, that the facts and statements of the party applying, are true, was sufficient to authorize the Court to change the venue. If counter affidavits are allowed, it will, in effect, defeat the purpose of the Act. This Court held, in the case of Gassaway vs. Smith, 3 Humph., 154, when the bill of exceptions did not show the reasons for refusing to change the venue, the Circuit Court could not be placed in error. It was a discretion to be determined of by tbe Court, which may be safely left to the exercise of that discretion, the supervision of which would be difficult by this Court. We admit the principle to he correct, that where the record fails to disclose the reason for the action of the Circuit Court in refusing the change of venue, this Court cannot reverse its decision, for the reason, that, in the absence of the facts that influenced the action of the Circuit Court, this Court cannot say that the legal discretion was improperly exercised; and we will presume it to have been correct; but where the action of the Court is excepted to, in allowing counter affidavits to resist the motion, the principle settled in the case of Gassaway vs. Smith, does not apply. The error of the Court is in permitting them to be read, which, under our construction of the Act, cannot be done. We see from the record that they were allowed, and in that was error. This Court said, in the case of Kirk vs. The State, 1 Coldwell, 348: “Where the Legislature has used words of plain and definite import, it would be very dangerous to put upon them a construction which amounts to holding that the Legislature did not mean what it had expressed. And if that intention is expressed in a manner devoid of contradiction and ambiguity, there is no room for interpretation or construction, and the Judges are not at liberty, on considerations of policy or hardship, to depart from the words of the Statute; that they have no right to make exceptions or insert qualifications. It is obvious, that to do so, would be to transcend the boundary separating judicial construction from judicial legislation. It is a recognized principle of exposition, too, that it is not allowable to interpret wbat has no need of interpretation.” The Legislature bas defined the manner in which the application shall be made; has thrown around it the proper guards, by requiring the oath of three or more disinterested persons, that the facts and statements made by the applicant are true. It is a legal right, to which the party, who brings himself within the provisions of the law, is entitled; and if the record discloses the reasons for the action of the Court which deprives him of that right, he can have its action revised in this Court; otherwise, if it rests in the mere exercise of a discretion of the Circuit Court, he cannot. In the case of Buchanan vs. McManus, 3 Humph., 349, where counter affidavits have been filed, in a motion to set aside a pro eonfesso taken in a Chancery cause, the Court said: “It is a dangerous and doubtful practice, and ought not to be encouraged.”

We concur with the views of the Court, as expressed in that case, that the practice is a dangerous one, and of doubtful policy. To extend the rule to this class of cases, would be to defeat the object and intention of the Legislature, and in many instances, deprive the party of a trial by a fair and impartial jury. The ground for the change in this case, is owing to the prejudice in the public mind against the plaintiffs in error, and is within the express letter of the Statute.

Other causes may be alleged in the affidavit, and of this the Court must judge, and has a right to determine whether they are sufficient or not, or whether they are credibly and well supported, under the rules of law applicable to this class of cases. It was p.ot designed or intended by the Legislature, that the opposing party should have the right to show, by counter affidavits,' the statements were groundless.

There is no provision in the Statute authorizing the reading of such, and we think it was not the intention it should be allowed. In the construction of a Statute allowing a change of venue, the Supreme Court of Indiana, 7 Ind. Reports, Witter vs. Taylor, held: “It is the duty of a Court to grant a change of venue in a civil cause, if the affidavits be in conformity with the requirements of the Statute; nor can counter affidavits be admitted in resisting the motion.” This, though not an authority upon the construction of our Statute, shows the construction placed upon Statutes similar to this, by a respectable Court. It is insisted in argument, the provisions of the Act, passed March 8th, 1867, sec. 8, pamphlet Act, 57, regulates and controls the practice, allowing counter affidavits. We think that Act has no application, and has not changed the law authorizing a change of venue. It is provided in section 8, of the Act aforesaid, where civil suits have been removed from any county where they were originally brought, they shall be transferred back to the county where they were originally brought, on the affidavit of three unconditional Union men of the county where the suit was brought, that justice may be done all parties.

This Act explains itself, and can have no reference to a change of venue from the county where the suit was brought. It has no application to this class of cases, and did not authorize the Court to receive counter affidavits.

We are, therefore, of opinion that the Court erred in receiving affidavits in opposition to a change of venue; that the plaintiffs in error are entitled to have the venue changed. Therefore, the judgment of the Circuit Court will be reversed, and the cause remanded.

HaweiNS, J.,

dissenting.

I regret that I cannot concur in the opinion of my brother Judges, in this case.

Section 2836 of the Code, provides that the venue in civil cases may be changed.

Section 2837, declares the mode of making the application for the change.

Section 2838, provides: “If the presiding Judge, upon due consideration, should be of opinion that the cause set forth is good, and the truth thereof, evident and credibly supported, he shall allow the change asked for.”

It is clear to my mind, that the party making the application is not entitled to a change of venue, as a matter of course, upon a mere literal compliance with the provisions of section 2837. If he is, then all of sec. 2838, except the words, “he shall allow the change asked for,” is meaningless. By this section, it is clearly intended to be declared, that notwithstanding the party may have made the application in the prescribed form, he shall not be entitled to a change, unless, on due consideration, the Judge should be of the opinion, not only that the cause set forth is good, but also that the truth thereof is evident and credibly supported. It seems to me, the construction given these sections by my brother Judges, practically denies to the presiding Judge, the exercise • of any discretion whatever, touching the application. ■ Surely the Legislature did not intend that the presiding Judge should go through with what, it seems to me, would be the farce of duly considering of the affidavits offered by the applicant, and ascertain from them alone: 1st, whether the cause set forth is good; 2d, whether the truth thereof is. evident; 3d, whether the application is credibly supported. He can ascertain, from the face of the affidavit of the applicant, whether the cause assigned be good; but how, I would ask, can he, if confined alone to the consideration of the ex parte affidavits presented by the applicant, ascertain whether the cause assigned be true or false, or whether the application is credibly supported? Suppose it be suggested to the presiding Judge, that the cause assigned is wholly untrue and without foundation, and that the application is not credibly supported — how, I would ask, can he ascertain whether the suggestion be true or false, if he be prohibited from all inquiry, and the exercise of all means of eliciting the truth, except on inspection and consideration of the ex parte affidavits offered by the applicant? ■ Can this be what is meant by “due consideration ?” Yet, as we have seen, he must be of the opinion, after due consideration, that the cause set forth is good, and the truth thereof evident and credibly supported, otherwise he is not authorized to order the change. With due deference to the opinion of my brother Judges, I must say it does seem to me, that a bare statement of the proposition, is enough to convince the mind, the construction they have given to this Statute, is erroneous. The belief of the applicant may be well founded, or it may be the result of delusion, or the statement of the existence of a belief, that he cannot have a fair and impartial trial, owing to the existing prejudices against him, may be wholly false. Did the Legislature intend to give the applicant the right to a change of venue, as of course, upon his compliance with the provisions of sec. 2837? If such had been the intention, why were the provisions of sec. 2838 incorporated into the Act? I confess my inability to answer the question.

The bill of exceptions states, that the plaintiff offered counter affidavits, to which the defendants objected; but they are not set out in the record. The record is silent as to the character and contents of these counter affidavits, and wholly fails to show upon what ground the Judge refused to order the change— whether it was because he was of opinion the cause assigned was not good, or the truth thereof was not evident and credibly supported. Surely the order was properly refused, if the Judge was of opinion the cause assigned did not, in fact, exist, or that the application was not credibly supported. But before the Judge is authorized to order a change of venue, the applicant must satisfy the mind of the Judge, that the cause assigned, is, in fact, true, and that the application is credibly supported. It is the duty of the Judge to ascertain, upon due consideration, how these things are; and how, I would again ask, can it be shown the cause assigned is untrue, or the application is not credibly supported, unless the Judge can inquire and hear proof. It is most clearly the meaning of the Statute, he may do so, else it means nothing, and is worse than nonsense. In the case of Gassaway vs. Smith, 8 Hum., 154, the Judge had refused the application, as in this case.

In that case, the application was to change the venue under the Act of 1825, whieh is, substantially, carried into the Code, and incorporated into the sections before referred to. This Court said: “How shall we say, in such a case, that the Circuit Court, when considering of this application, erred in believing the cause assigned not to be good, or the truth evident and credibly supported. There certainly are many things which the discretion of the Circuit Court must determine, and which may be safely left to be determined by it. There are many things done and transacted there, as to which, from their very nature, the supervision of this Court would be difficult, and could not be made effective. This, we think, is one of them.”

This, I believe, is the only authority upon this subject, to be found in our reports; and notwithstanding it expressly holds, that this is a proceeding in the Circuit Court, over which the supervision of this Court cannot be made effective, and must be determined by the Circuit Judge, in the exercise of a discretion conferred upon him by the Statute, where it may be safely left, the ruling of a majority of this Court, as I understand it, practically denies to the Circuit Judge, the exercise of any discretion whatever, and requires him to order the change of venue, whether or not, in his opinion, the truth of the ground of the application is evident or credibly supported, if the application be made in conformity with the requirements of sec. 2837; and in such cases, if the Circuit Judge, in the exercise of the discretionary power conferred upon him by the Statute, refuses to order the change, this Court, in the exercise of its supervisory powers, will so far disregard the discretionary power of the Circuit Judge, as to reverse his action, upon the ground that it is erroneous.

When such a case as is contemplated by the Statute, is presented, the Circuit Judge ought, most certainly, in the exercise of the discretion given him, order the change asked for; but, should he refuse to do so, without stating his reasons, this Court cannot control that discretion, unless the case in 3 Hum., before referred to, be overruled.

It is argued, the Statute does not authorize the hearing of counter-affidavits. To this, I answer, they are not prohibited by the Statute, neither does it give the party a right, as a matter of course, to a change, upon a literal compliance, merely, with the terms of sec. 2837, something more must be done. The Court must, after mature consideration, be of opinion the cause is good, the truth thereof evident, and that it is credibly supported. It is evidently contemplated by sec. 2838, that the Judge shall examine, and inquire into, and consider of the truth of these matters, upon the filing of the affidavits, as required by sec. 2837. In my opinion, it is, at most, not such error as will authorize this Court to reverse, for the Circuit Judge to hear counter-affidavits, or to examine witnesses orally in Court, or in any manner to avail himself of any information within his reach, touching these questions. Suppose the rule of construction which is applied in this case, is to prevail in criminal cases, it is easy to perceive that nine-tenths of the criminals of the State, will go unwhipped of justice, by changing the venue to a county different from that in which the witnesses of his crime reside, thus dragging them to a distant court for a few terms, until they are worn out in an expensive attendance.

Sec. 5195 of the Code, provides, that, “In criminal prosecutions, the venue may be changed, when, upon the application of a defendant, it is made to appear satisfactorily to the Court, that, from undue excitement against the prisoner in the county where the offense was committed, or any other cause, a fair trial could not probably be had. Now, it will not be questioned, although the Statute is silent as to the manner in which the application is to be made, or supported, but that the prisoner might offer his own affidavit, and those of such of his friends or confederates in crime as he might choose, stating the grounds of the application were true; and, under the ruling of this case, the Court could not look beyond or out of these affidavits, but would be compelled to grant the change. To a construction fraught with such consequences, I cannot assent.

It seems strange to me, that the Circuit Judge may arbitrarily refuse an application to change the venue; and in such case, no reason being assigned for his action, this Court will not reverse. Yet, if he institute an inquiry, for the purpose of eliciting information, by which he may be guided in the intelligent exercise of his discretion, that, of itself, is such an error for which this Court will reverse.

It amounts to this — if the Circuit Judge, blindly and arbitrarily refuse the application, this Court cannot reverse; but, if he intelligently exercised the discretion, it is an error for which his action will be reversed.  