13 Ill. 581 | Ill. | 1852
The demurrer to the plea to the jurisdiction of the court only presented the question whether this is a case in which the relator could obtain a change of venue; for the record showed that the venue had been changed, and that estopped the party from denying that fact by a plea. It is not competent for the party to plead in contradiction to the record itself in the same cause. The court must take notice of the contents of the record of the case. Suppose the plea had averred distinctly that there had been no change of venue, or had denied the existence of some other order which the record showed had been made in the cause, it would be absurd to say that the plaintiff should take issue upon the plea and produce the record. To admit the party to deny the existence of any portion of the récord of the cause at bar would be something new in pleading. The record itself stands as a perpetual estoppel to such a plea, and the objection may be taken by demurrer to the plea, and perhaps it might be treated as a mere nullity. This plea, then, cannot be considered as denying that in fact an order had been made changing the venue in the cause; but we are willing to treat it as presenting the question, whether this order changing the venue was not a mere nullity, conferring no jurisdiction upon the Circuit Court of Stephenson county, for the reason that it is not a case in which the statute authorizes a change of venue, on the 'application of the plaintiff or relator. We do this the more readily because it was so treated at the bar by the counsel for both parties, who only argued the last question stated. The statute provides that either party in any civil cause shall be entitled to a change of venue upon showing to the court the existence of certain enumerated facts, and we have only to determine whether this case comes within that provision of the statute. In form this is a criminal proceeding, but it is only so in form. In substance it is for the protection of the private and individual rights of the relator, and others 'in the precinct similarly situated. Donnelly v. The People, 11 Ill. 552. It may be as essential to the protection of his rights that he should be allowed a change of venue, as if the proceeding were in his own name and not in the name of the people. He may be the subject of the same prejudices, and is liable to be as much injured thereby as if he were the nominal as well as the real party, and the policy and justice of the law secure to him the same rights to have his case tried uninfluenced by such prejudices. It is the nature of the rights to be asserted and maintained to which we should look, rather than the form in which the party may be obliged to proceed to assert those rights, in giving a just interpretation to the statute. This being in substance a civil suit, we are of opinion that the statute secured to the relator a right to a change of venue upon making out a proper case, and that the Circuit Court of Stephenson County should have proceeded with the cause, as if it had originated in that county. A different construction may be required when an information shall be filed, not for the assertion or protection of an individual right, but purely to protect or promote the rights and interests of the people at large; but it will be in time to decide that case when it arises.
The judgment of the Circuit Court is reversed, and the cause remanded for further proceedings.
Judgment reversed.
