Apipeal from, Polk Circuit Court. Action to foreclose a mortgage. The defendant Rivers applied for a change of place of trial to the District Court, on the ground of prejudice of the circuit judge. His motion was supported by an affidavit in due form, and purported to be signed by the requisite number of persons. The plaintiff moved that the persons whose names appeared to the affidavit be produced by defendant Rivers for cross-examination in open court.
Cited by 1 later decisions (1 by the Supreme Court) — most recently January 1921
Good law ✅— No negative treatment on recordhow we know
¶11. venue: prejjudse may ’ overrule application. Section 2590 of the Code provides that a change of the place of trial in any civil action may be had when either party files an affidavit, etc. The defendant contends that he has complied with this section fully, and that the court had no discretion m regard to the allowance of the change. Whether this be so or not, where the affidavit filed is really what it purports to be, the court must, we think, be regarded as having the right to use all reasonable means to protect itself against imposition. If the court was wholly unaware of the existence of prejudice, and had no knowledge of the disinterested persons whoso names purport to be attached to the affidavit, it would have reason to suppose that such persons did not exist, or had not made the affidavit. In such case it appeai'3 to us that it is the plain duty of the court to require that the disinterested persons be produced, to the end that the court may satisfy itself that the affidavit filed was made by the persons whose names purport to be attached to it. When, in this case, the persons could not be found, and the defendant refused to give information concerning them, and various suspicious circumstances were shown, it appears to us that the court was *437justified in concluding that the affidavit was not made as it purported to be. We think that the application for a change of place of trial was properly denied.
