motion, or plea, as against a counter motion by the plaintiff to transfer the cause to the proper county.'

Where a superior court takes jurisdiction by appeal from an inferior court, the former has been held not to have jurisdiction to make an order changing the venue to another county, where the constitution gives such courts appellate jurisdiction from inferior courts of their respective counties. The same rule has been applied where a cause has been transferred to a superior court, because the same is beyond the jurisdiction of the inferior court.3

Under a statute authorizing non-residents to be sued in any county where found, the application for a change of venue, where the action is brought in some other county, must be made. The party can not have the action dismissed on the ground that he was sued in one county and served in another.*

46. GROUNDS FOR CHANGE OF VENUE.-The grounds for changes of venue are purely statutory. Without some statute authorizing the change, some other remedy must be resorted to where the action is commenced in the wrong court.5

Different causes for changes of venue are provided for in the different states. Of these the following may be mentioned:

a. That the action has been commenced in the wrong county or district.

b. Disqualification of the judge of the court before whom the action is pending.7

c. Bias or prejudice of the judge or of the people of the place where the action is pending that will prevent a fair and impartial trial.

1 Geiser Manuf'g Co. v. Sanders, 26 S. Car. 70; 1 S. E. Rep. 159.

2 Gross r. Superior Court, 71 Cal. 382; 12 Pac. Rep. 264.

3 Powell . Sutro, 21 Pac. Rep. 436.

Marquardte. Thompson, 78 Ia. 158; 42 N. W. Rep. 634.

5 Commercial Nat'l Bank . Davidson, 18 Or. 57; 22 Pac. Rep. 517; Bulwer Con. Min. Co. e. Standard Con. Min. Co., 83 Cal. 613; 23 Pac. Rep. 1109.

6 Ante, sec. 45. 7 Curtis c. Wilcox, 74 Mich. 69; 41 N. W. Rep. 863.

d. That the convenience of witnesses will be subserved by the trial of the case in a different place.

e. That the county in which the action is pending is a party to the suit.

f. That the trial judge is a material witness in the cause.1

g. Undue influence of a party or his attorney.

But all of these causes do not exist in all of the states. There is a marked difference between these grounds for a change of venue as to their effect upon the jurisdiction of the court. Where the action is brought in the wrong county, in some of the states, where this is not made a ground for a transfer of the cause to another county, and the action is local, the court has no jurisdiction, and any judgment it may render is wholly void.2

In those states in which the remedy of the party, where the action is brought in the wrong county, is confined to an application for a change to the proper county, the jurisdiction is contingent upon such application being made. If the application is made, the right to a change is absolute, the application puts an end to the jurisdiction. of the court, and any further action on its part is wholly void. But under such a statute, if no application for a change is made within the time provided, the jurisdiction of the court becomes absolute, and its proceedings are as valid and binding as if the action had been commenced in the proper county or district.'

If the judge of the court is legally disqualified, by reason of interest in the result of the action, or other cause, he has no jurisdiction. No application for a change is necessary. It is his duty to decline to act. But the disqualification of the judge does not necessarily affect the jurisdiction of the court over which he presides. Frequently, provision is made for the holding of the court,

1 Gray v. Crockett, 35 Kan. 66; 10 Pac. Rep. 452.

3

Ante, secs. 26, 45.

Ante, sec. 45; Watts v. White, 13 Cal. 321; post, secs. 47, 51. 4 Ante, sec. 45.

for the trial of such cause, by some other judge. And there may be another competent judge within the county, district, or circuit. Therefore, such an objection does not, strictly speaking, raise a question of venue, or of the jurisdiction of the court, but of the qualifications of the judge to hold the court. And in some of the states, a common-law cause can not be taken from the county on account of the disqualification of the judge, but another judge must be called to preside. But if the judge proceeds to act under such circumstances, after the application for a change has been made, the validity of the proceedings are as much without jurisdiction as if the court itself were without jurisdiction, and all his acts are void.3

Where the ground of an application for a change of venue is on account of the bias or prejudice of the inhabitants of the county, or the convenience of witnesses, the jurisdiction of the court is not involved. In such cases it is held, in some of the states, that the right to the change is not absolute, but that the question whether the action shall be transferred or not is a matter of discretion on the part of the trial court. And, even on a direct attack, by appeal, upon an order granting or refusing the change, the order will not be reversed unless it appears that the discretion of the court has been abused.5 And counter evidence may be given in this class of cases by the opposite party. This being so, the application for the change does

Chicago, B. & Q. R. Co. v. Perkins, 125 Ill. 127; 17 N. E. Rep. 1. 2 State v. Walker, 25 Fla. 561; 6 So. Rep. 169.

3 Smelzer v. Lockhart, 97 Ind. 315; Krutz v. Howard, 70 Ind. 174, 179; Shoemaker v. Smith, 74 Ind. 71, 76; Freeman on Judg., sec. 146.

* De Wein v. Osborn, 12 Colo. 407; 21 Pac. Rep. 189; De Walt v. Hartzell, 7 Colo. 602; 4 Pac. Rep. 1201; City of Philadelphia v. Ridge Ave., etc., Ry. Co., 143 Pa. St. 444; 22 Atl. Rep. 695; Thompson v. Narwood, 19 N. Y. Sup. 632; Ringgenberg v. Hartman, 102 Ind. 537; 26 N. E. Rep. 91; Thorp v. Bradley, 75 Ia. 50; 39 N. W. Rep. 177; In re Estate of Whitson, 89 Mo. 58; 1 S. W. Rep. 125.

5 Thompson v. Narwood, 19 N. Y. Sup. 632; Ringgenberg v. Hartman, 102 Ind. 537; 26 N. E. Rep. 91; Thorp v. Bradley, 75 Ia. 50; 39 N. W. Rep. 177; Clanton v. Ruffner, 78 Cal. 268; 20 Pac. Rep. 676.

6 State v. Stewart, 74 Ia. 336; 37 N. W. Rep. 400.

not oust the jurisdiction of the court, but the truth of the facts alleged must appear to the court.'

But in other states, a different rule obtains, as to some of these grounds for a change of venue, because the statute makes it imperative upon the court to grant the change, upon the filing of a proper affidavit therefor, and no counter showing is allowed. But it is sometimes held that, where the application only affects the question of a trial of the cause, as, for example, in case of bias and prejudice of the inhabitants, the court may proceed with the cause in the county where it is commenced until the issues are made up and the cause is ready for trial. And sometimes something more than the application is necessary to divest the court of jurisdiction; for example, payment of costs.

And it is held in some of the states that the application for the change does not oust the jurisdiction of the court, but the order of the court granting the change alone has that effect.1

The question as to the effect of the different proceedings on a motion for a change of venue on the jurisdiction of the courts from and to whom the change is taken, or sought to be taken, has been considered in another place.5

In order to render a judge incompetent because of his having been attorney for one of the parties, he must have been such attorney in the pending cause or some matter involved in the litigation therein."

But if he has been consulted and has advised with reference to questions involved in the litigation, he is disqualified although never regularly employed as an attorney in

1 City of Philadelphia v. Ridge Ave., etc., Ry. Co., 143 Pa. St. 444; 22 Atl. Rep. 695.

2 Post, sec. 47; Rout v. Ninde, 118 Ind. 123; 20 N. E. Rep. 704.

'In re Estate of Whitson, 89 Mo. 58; 1S. W. Rep. 125.

5 Ante, sec. 24, p. 151; post, secs. 47, 48, 51.

"Karcher v. Pearce, 14 Col. 557; 24 Pac. Rep. 568.

the pending action. And if the judge has been a witness for one of the parties, as to a material and contested point in the cause, at a former trial, he is disqualified.2

So where the judge has received a general retainer from one of the parties, pending the litigation, he may properly decline to hear the cause and transfer the same, although not, under the statute, strictly disqualified to preside.3

A party can not be deprived of his right to a removal of the action by joining in the complaint a cause of action that is removable to another county with one that is not removable."

47. APPLICATION FOR CHANGE AND ITS EFFECTS.-As we have seen, in most of the states, where au action is brought in the wrong county, the party is required, within the time fixed by statute, to make application for the removal of the same to the proper county, in order to avoid the trial of it where brought."

As to the time when the application shall be made, and the form and manner of making it, the statutes of the several states differ, but these differences are not important here.

Whatever time may be fixed by statute is binding upon the party, and his application must be made within the time or his right is lost. But this is subject to the right of the court to relieve a party from an excusable neglect, or failure, to make his application in time."

With respect to applications for change of venue, on other grounds, the time within which the same shall be made is often fixed by rules of courts. And so long as such rules, as to time, are not unreasonable, or in conflict

1 Curtis v. Wilcox, 74 Mich. 69; 41 N. W. Rep. 863.

2 Burlington Ins. Co. v. McLeod, 40 Kan. 54; 19 Pac. Rep. 354. Kern Valley Water Co. v. McCord, 70 Cal. 646; 11 Pac. Rep. 798. Ah Fong v. Sternes, 79 Cal. 30; 21 Pac. Rep. 381.

5 Ante, sec. 45; post, sec. 49.

6 Post, sec. 49; Granville County Board, etc., v. State Board, etc., 106 N. C. 81; 10 S. E. Rep. 1002.

7 Shoemaker v. Smith, 74 Ind. 71; Shaver v. Huntley, 107 N. Car. 623; 12 S. E. Rep. 316; Bernhamer v. State, 123 Ind. 577; 24 N. E. Rep. 509.

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