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70 Ind. 174

Krutz v. Howard

Indiana Supreme Court

Decided May 15, 1880

Indiana Supreme Court · decided 1880-05-15

<p>Supreme Court.— Amendment Deemed Made.— Variance. — Promissory Note. — The fact, that, in an action on a promissory note executed by h is</p> <p>A. B. & Son and C. X D., the complaint describes them as A. B. & Co. mark and C. D., is a variance which might he corrected by an amendment below, and which the Supreme Court, on appeal, will deem made.</p> <p>Charge oe Judge. — Affidavit for. — Rule of Court. — If an affidavit for a change of judge complies with the material requirements of the statute on that subject, the change must be granted, though the affidavit fail to allege, as required by a rule of the court where it is filed, that the applicant believes he has a good cause of action or defence, and ¿hat the application is not made merely for delay.</p> <p>Same. — Co-Party may take Change. — Effect of — One or more co-par'ties to an action may take a change of venue, and thus change the venue as to his co-parties as well as himself.</p> <p>Same. — Reversal of Judgment in Supreme Court ■ — -Where a change, so asked, is erroneously refused, the Supreme Court will reverse the judgment as to all of such parties.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1880-05-15

How this case has been cited

Cited by 32 later decisions — most recently July 1951 · most notably Thorn v. Silver (1909), Moore v. Sargent (1887)

32 state decisions

10018801890190019101920193019401950decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1On petition eor. a rehearing.

Biddle, C. J.

¶2— The counsel for the appellee, in his petition for a rehearing, insists that the word “party,” as used in sec. 207 of the code of practice, means all the persons who are defendants, .or all who are plaintiffs, whether one or many; that, when a single one of several defendants or plaintiffs makes application for a change of venue, the affidavit must be made on behalf of all the defendants or plaintiffs, and exceptions must be reserved on behalf of all; that, as the application in this case was made by only two of the defendants, each for himself, and no exceptions were reserved on behalf of all, there is no sufficient exception in the record to present the question involved to this court; and that, therefore, there being no sufficient exceptions in the recoi’d, this court must affirm the judgment, even though the rule of court upon which the change of venue was denied was unauthorized by law.

¶3We are not.convinced by this reasoning. Such a construction w.ould render the statute impracticable. When *179one of several defendants or plaintiffs obtains a change of venue for himself, it necessarily changes the venue as to all his co-defendants or co-plaintiffs. The rule contended for by the counsel would sever defendants or plaintiffs necessary to be joined, and thus defeat the action in the court to which the change was made, for the want of proper parties therein, or deny a change of venue to any one defendant or plaintiff, unless all the several defendants or plaintiffs had sufficient ground therefor.

¶4The counsel also contends that, inasmuch as no application for a change of venue was made on behalf of the third defendant, Carver, the judgment as to him should be affirmed, even though it must be reversed as to the other two defendants, Ehutz and Schmied.

¶5If we are right in the above view, this argument is unsound. When the court improperly refused the change of venue to Krutz and Schmied, or to either of them, it had no further jurisdiction in the case, and could render no valid judgment against either of the defendants. The judgment is therefore properly reversed as to all.

¶6Petition overruled.

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