215 Pa. 231 | Pa. | 1906
Opinton by
This was an application to the court below by the defendant company for a change of venue under paragraph five of section one of the Act of March 30, 1875, P. L. 35, 2 JPurd. 2069. That paragraph requires the court to change the venue “ whenever a large number of the inhabitants of the county in which such cause is pending, have an interest in the question involved therein, adverse to the applicant, and it shall appear, by the oath of such applicant, that he believes he cannot have a fair and impartial trial.” As held in Willoughby v. Buffalo, etc., Railway Company, 203 Pa. 243, and Little v. Wyoming County, 214 Pa. 596, it is mandatory on the' court to change the venue when it is satisfied of the truth of the facts alleged in any of the paragraphs of the first section of the act. In this case the applicant having filed the affidavit required by the statute, the fact which the court below was required to find, or to be satisfied of the truth of, was that a large number of the inhabitants of Delaware county had an interest in the question involved in this case, adverse to the defendant company. If the learned judge of the court below found the fact in favor of the defendant, it was his duty to grant the application for a change of venue.
The defendant presented its petition to the court below in the proper form, averring that a large number of the inhabitants of Delaware county had an adverse interest in the
The issue as thus made by the pleadings was heard by the court. The testimony of two witnesses was taken in behalf of the defendant company. After a full consideration of the case, the learned judge of the court below found the facts against the defendant and refused the application for a change of venue. In his opinion he says: “ The burden is on the petitioner to satisfy the court of the truth of the facts alleged. This it has failed to do. From the evidence submitted we cannot find as a fact that a large number of the inhabitants of the county have an interest in the question involved in this suit, adverse to the petitioner.” This is a distinct finding by the court on the jurisdictional fact alleged in the petition, and the finding having been against the petitioner, the denial of the application necessarily followed. This procedure is in strict compliance with the provisions of the act of 1875. We have examined carefully the evidence submitted by the defendant company and we are not convinced that the learned judge erred in his conclusion.
The purpose of the act of 1875 must be kept in view in ascertaining what constitutes in contemplation of the statute a large number of the inhabitants of a county. The legislative intent was to secure to the litigant a jury which would afford him an opportunity to have a fair and impartial trial; and when that cannot be obtained in the county in which the action is pending by reason of the number of the inhabitants throughout the county having an interest adverse to him in the question involved, then there is in contemplation of the act “a large number of the inhabitants” having an adverse interest, which requires the court to change the venue. The fact which authorizes a change of venue under paragraph five of section one of the act is that “ a large number of the inhab
Elkin, J., dissents.