¶2I find myself unable to agree with the court in its opinion in this case. In this cause the record discloses that a petition for drainage was filed by appellees, in which appellants were made parties. After the docketing of the case, and before any steps were taken in the cause, a motion, supported by affidavit was filed by appellants, asking for a change of judge, which motion, after other proceedings were had by the judge from whom the change was asked, was stricken from the files, for the reason that appellants had filed no remonstrance, and therefore had tendered no issuable facts and that the record discloses that appellants were not injured by the action of the court in not granting a change of venue. In the opinion this court cites Turner v. Conkey (1892), 132 Ind. 248, 31 N. E. 777, 17 L. R. A. 509, 32 Am. St. 251. In that case there was an attempt to attack the judgment collateral^, and it was held that the judgment was not void. In the opinion in this ease this court holds that the refusal to grant the change will be deemed prejudicial, in the absence of a contrary showing.
¶3It seems to me that the holding of this court on that point is an effort to legislate into the statute the right of this court, and necessarily of the trial court, to adjudicate, by adverse proceedings the question of whether a judge from whom a change of venue is asked is, or is not, biased or prejudiced against the party asking the change. The statute authorizing a change of judge reads as follows:
¶4“The court in term, or the judge thereof in vacation shall [our italics] change the venue of any civil action, upon the application of either party, made upon affidavit, showing one or more of the following causes: … # Seventh. When either party shall make and file an affidavit of the bias, prejudice, or interest of the judge before whom the said cause is pending.” §422 Burns 1908, §412 R. S. *6331881. This statute is mandatory and cannot be disregarded, and when the proper affidavit is filed for a change of judge it must be granted. Manley v. State (1875), 52 Ind. 215; Fisk v. Patriot, etc., Turnpike Co. (1876), 54 Ind. 479; Duggins v. State (1879), 66 Ind. 350; Krutz v. Howard (1880), 70 Ind. 174; Burkett v. Holman (1885), 104 Ind. 6, 3 N. E. 406; Smith v. Amiss (1903), 30 Ind. App. 530, 66 N. E. 501.
¶5No court has any right to disregard the statute, and then insist that notwithstanding the fact that an affidavit discloses that the court is prejudiced, yet the petitioner was not injured. The appellants were made parties to the proceedings, were assessed for the construction of the drain and were injured in that they were deprived of the right of having their cause submitted to an impartial tribunal. This was no collateral attack on the proceedings, but appellants have taken the only means in their power to present the matter for review. The law does not require a litigant to do useless and unnecessary things to protect his rights. The making of issues by a remonstrance, and a trial before a judge who was biased and prejudiced against appellants as shown by the affidavit filed for a change, and the facts therein set out not being controverted, as they cannot be, is worse than a farce; and the statute requiring judges, on proper application, to change the venue of a cause would be rendered nugatory and worse than useless. This statute being mandatory, no court has a right to disregard it. The very -fact that the trial court struck the affidavit for a change of judge from the files is conclusive proof that he was unwilling to grant appellants the right due them under the law, and justified the filing of the motion for the change.
¶6It is my opinion that where the proper motion, for change of venue, supported by affidavit, is filed by a party to the record, that any other or further action by the trial judge, from whom a change is asked, is void, as against a direct *634attack, with the bare exception of calling and appointing' another judge to try the cause. In holding that it was not error not to grant a change of venue, upon the affidavit filed in this case, by appellants, there should be a rehearing granted and this cause reversed.