Burke v. Mayall

10 Minn. 287 | Minn. | 1865

By the Court —

Berry, J.

— The motion for a change of venue in this action, made by the appellant in the Court below, purports to be based on prejudice and ill-will on the part of the Judge of the District Court.

Our statute regulating this subject found upon page 537, Pub. Stat., Secs. 44, 45, provides that a party may apply for a change of venue by petition, setting forth the cause of the application, and “accompanied by an affidavit verifying the facts stated-in the petition.”

From the language of the statute requiring a statement of facts, as well as from the construction heretofore pirt upon the statute by this Court, in Ex parte Gold T. Curtis, 3 Minn., 274, it would seem that the general charges and conclusions of prejudice and antipathy found in the verified petition upon which the motion was made would be insufficient. Aside from these general statements it appears that there have been six different proceedings of one kind and another having relation to the foreclosure of a certain mortgage in which the appellant claims to be interested; and the appellant alleges that there have been six erroneons decisions of various kinds in reference to matters arising in the course of those several proceedings, and it is contended that these errors can only be accounted for on the ground of prejudice and ill-will on the part of the Judge. Now while it is very jiossible that some of these decisions may have been erroneous in point of law, and while it is certain that the holders of the mortgage have liad an unusual experience of the “law’s delay,” we see no evidence that the Judge below was prejudiced against the appellants, or actuated by any other than the purest and fairest motives in making the various decisions, which the appellant claims to have resulted in depriving him of his just and legal rights. No appeal appears to have been taken from any one of these decisions. From some of them the defendant could have appealed, and thereby (it is to be presumed) have obtained justice, if errors had been committed. Wo arrogate nothing when we say that the theory of our judicial system is that Courts of nisi prius may commit errors of'judgment in matter of law which are to be reviewed by Courts of last resort, and to hold that such error in one instance or repeated instances, (which would seem to be all that the appellants can claim in this ease,) is equivalent to prejudice, would lead to absurd consequences. We are aware of no authorities which go to this extent. The right to a particular place of trial is fixed by law for wise reasons, and no party should be sent away from that place of trial, unless the grounds for a change of venue unmistakably appeal’.

The order denying the motion for a change of venue is affirmed.