187 Ind. 78 | Ind. | 1918
— This is an original action brought in this court to compel by mandate the granting of a change of venue by Luke H. Wrigley, as judge of the Whitley Circuit Court, in a proceeding pending in that court. On suggestion -of the death of Fletcher J. Emley, administrator with the will annexed of Henry Rosen, deceased, relator since the time the suit was filed, and the appointment of the Farmers Loan and Trust Company of Columbia City, as his successor, it is hereby ordered that the Farmers Loan and Trust Company be substituted as relator.
The defendant appeared to the complaint filed by relator, and, waiving the issuing and service of the alternative writ, filed a demurrer to the complaint. Upon oral argument of the questions presented by the demurrer it was agreed that the complaint was to be regarded by the court as amended so as to show that the
This action is brought under the authority of an act of the general assembly approved on March 8, 1915. Acts 1915 p. 207. The part of the section upon which relator relies reads as follows: “And provided further, that such writs of mandate may issue out of - the supreme court to the circuit, superior or criminal courts of this state respectively, compelling the performance of any duty enjoined by law upon such circuit, superior •or criminal courts respectively, including the granting of changes of venue from the county in cases where such change of venue is allowed by law, and timely, proper and sufficient motion and affidavit have been filed therefor, and such change of venue has been refused.”
It will be observed that the provisions in question confer the power on this court to compel, by mandate, a circuit, superior, or criminal court of .this state to perform any duty enjoined by law upon such courts. Among the duties which may be thus compelled the statute expressly includes that of granting a change of venue from the county where such change has been refused in a case in which a change of venue from the county is allowed by law. The duty of a trial court to grant a change of venue in a proper case is not placed by the statute in a different class from other duties
The relator claims that the court was required to grant the change of venue in the case in which the affidavit was filed by virtue of §422b Burns 1914, Acts 1913 p. 348, which is in the words following: “That in any action, proceeding or matter, of any character or
Defendant takes the position, as shown by his demurrer, that the trial of an issue tendered by an exception to the final report of an administrator falls within the proviso to the statute and that no change of venue can be allowed in such a case. It thus appears that the construction of a statute is involved and that the trial court has placed a construction on the statute and has ruled in accordance with such construction. Relator is not satisfied with the construction placed upon the statute by the trial court, but insists upon a different construction which would require the granting of the change of venue¡
. Note. — Reported in 118 N. E. 353. Mandamus: the remedy is not a substitute for appeal or writ of error, 98 Am. St. 891. See also under (1) 36 Cyc 1135; (2) 26 Cyc 203, 40 Cyc 183.