with the law, the court has power to make them and they are as binding on the parties as if they constituted a part of the statute on the subject.' But if the cause for the application is not known until the time has expired, and could not have been discovered with reasonable diligence, whether the time is fixed by statute or rule of court, the party will, upon a proper showing, be allowed to make his application at a later time. But it is not sufficient to show, simply, that the cause was not discovered. It must be shown that due diligence was used to discover the facts.3

In some of the states but one change of venue can be had by the same party, and a second application is properly denied if the party, or one of several parties, plaintiff or defendant, has already had one change of venue.

As to the nature and form of the application the statute controls. In some of the states an affidavit of the party, stating the facts required by the statute to be stated, is all that is necessary."

In others, a written demand for the change, in addition to the affidavit, is necessary. Generally this demand is required to precede a motion for removal."

This is to give the plaintiff an opportunity to consent to a change of the place of trial without the expense of a motion for that purpose, and if the demand is acceded to the jurisdiction may be transferred to the proper court by consent and without a formal application or motion.7

Again, in some cases, the party is required to set forth

1 Shoemaker v. Smith, 74 Ind. 71; Moulder v. Kempff, 115 Ind. 459; 17 N. E. Rep. 906.

Shoemaker v. Smith, 74 Ind. 71, 75; Bernhamer v. State, 123 Ind. 577; 24 N. E. Rep. 509.

3 Ringgenberg v. Hartman, 102 Ind. 537; 26 N. E. Rep. 91; Witz v. Spencer, 51 Ind. 253.

4

* Peters v. Banta, 120 Ind. 416; 22 N. E. Rep. 95; Griffith v. Dickerman, 123 Ind. 247; 24 N. E. Rep. 237.

5 Fatt v. Fatt, 78 Wis. 633; 48 N. W. Rep. 52.

Penniman . Fuller, 133 N. Y. 442; 31 N. E. Rep. 318; New Haven Clock Co. v. Hubbard, 16 N. Y. Sup. 125; Elam v. Griffin, 19 Nev. 442; 14 Pac. Rep. 582; Pennie . Visher, 94 Cal. 323; 29 Pac. Rep. 711. Elam v. Griffin, 19 Nev. 442; 14 Pac. Rep. 582.

specifically his defense to the action. And under some of the statutes other evidence than that of the party is required. But whatever the terms of the statute may be they must be complied with or the change must be denied.3 An infant party, over the age of fifteen, has been held competent to make the necessary affidavit for removal.1

Usually the affidavit in support of an application for removal is required to be made by a party to the action." But the affidavit of an attorney, on behalf of a party, has been held to be sufficient. And in some cases a distinction is made in this respect between a change from the judge and a change from the county.7

Nothing more than a compliance with the statute can be required, by rules of court or otherwise. But a party has no vested right to a change of venue on the terms fixed by the statute in force when an action is commenced. Therefore, a statute subsequently enacted requiring a different application must be complied with if the application for the change is made after the same has gone into force."

An affidavit for a change may be amended, with leave of court, after the time it is required by statute to be made.1o

In some of the states, it is held to be sufficient to set forth the cause relied upon, in general terms, in the language of the statute." In others the facts must be stated from which the court may determine whether the cause exists or not, as in cases where it is alleged that a fair and impartial trial can not be had before the presiding judge, or that the convenience of witnesses demands it, or the

1 Bowen v. Bowen, 74 Ind. 470.

2 Garrett v. Bickler, 78 Ia. 115; 42 N. W. Rep. 621; Eikenberry v. Edwards, 71 Ia. 82; 32 N. W. Rep. 183.

3 Smith v. Clark, 70 Wis. 137; 35 N. W. Rep. 318. Albert v. State, 66 Md. 325; 7 Atl. Rep. 697.

5 Stevens v. Burr, 61 Ind. 464.

Perkins v. McDowell, 3 Wyo. 203; 19 Pac. Rep. 440.

' Heshion v. Pressley, 80 Ind. 490.

8 Krutz . Howard, 70 Ind. 174.

9 Eikenberry v. Edwards, 71 Ia. 82; 32 N. W. Rep. 183.

10 Palmer v.

Barclay, 92 Cal. 199; 28 Pac. Rep. 226.

11 Fatt . Fatt, 78 Wis. 633; 48 N. W. Rep. 52; Fisk v. Patriot, etc., Tp. Co., 54 Ind. 479; 2 Works Ind. Pr. & Pl., sec. 1261.

like. But when the facts are stated, it is held in some of the states that the court must take them to be true and act accordingly. And, in most of the states, the party is entitled, as matter of absolute right, to a change of venue upon making his application in the form prescribed. But in some of the states, under some of the grounds, the granting of the motion is within the legal discretion of the court, and the facts alleged in support of the motion' may be controverted by the opposite party. And where the attack is upon the judge, on the ground of bias and prejudice, and the facts are required to be stated, it is held that the judge may take into account his own knowledge of the truth or falsity of the facts alleged in determining upon the justice of the demand for a change."

This is certainly a rather dangerous construction of the statute, however, unless it can be assumed that every judge is upright and honest, because, under such a construction, the very act of granting the change will frequently amount to an admission on the part of the judge that he has been in the wrong in prejudging a cause, or otherwise so conducting himself as to show that he is not fair minded and impartial. Such decisions are the natural result, however, of the abuse of statutes authorizing changes of venue."

It is held, also, that the knowledge of the judge may aid a defective application. But there are cases holding

1 Vance v. Field, 89 Ky. 178; 12 S. W. Rep. 190; German Ins. Co. v. Landram, 88 Ky. 433; 11 S. W. Rep. 367; Fellows r. Canney, 75 Mich. 445; 42 N. W. Rep. 958; DeWalt v. Hartzell, 7 Colo. 601; 4 Pac. Rep. 1201. 2 Vance v. Field, 89 Ky. 178; 12 S. W. Rep. 190.

3 Fatt v. Fatt, 78 Wis. 633; 48 N. W. Rep. 52; Stevens v. Burr, 61 Ind.

464.

Ante, sec. 46; Garrett . Bickler, 78 Ia. 115; 42 N. W. Rep. 621; Hawes v. State, 88 Ala. 37; 7 Sou. Rep. 302; North-eastern Neb. Ry. Co. r. Frazier, 25 Neb. 42; 40 N. W. Rep. 604; City of Philadelphia, v. Ridge Ave., etc., Ry. Co., 143 Pa. St. 444; 22 Atl. Rep. 695; Clanton v. Ruffner, 78 Cal. 268; 20 Pac. Rep. 676.

5 Garrett v. Bickler, 78 Ia. 115; 42 N. W. Rep. 621.

Vance v. Field, 89 Ky. 178; 12 S. W. Rep. 190; Garrett v. Bickler, 78

Ia. 115; 42 N. W. Rep. 621.

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

that, a proper affidavit being made, the knowledge of the judge can not be used to defeat the right to a change.1

Disqualification of the judge does not always entitle a party to a change from the county. And in some of the states no such change can be had on that ground, except upon consent of all the parties.3

Usually, where the application is on the ground of convenience of witnesses, the same can not be made until the issues are formed, and the affidavit is required to show merits and that the facts to which the witness will testify have been stated to counsel. And that he has fully and fairly stated the case to his attorney, and that he is informed by his attorney that he has a good and meritorious cause of action or defense."

Where the transfer of a cause is allowed, if the judge of the county to which the removal is asked is qualified to hear the cause, that such judge is qualified must be affirmatively shown."

If the ground is that the judge is disqualified, by reason. of his having been of counsel, or the like, no formal application for a change is necessary. It is the duty of the court to order the change upon a mere suggestion of the fact or upon his own motion. But this is not so where the ground is that the action is brought in the wrong county, although the right to a removal is absolute.'

Where the change is asked on the ground that defendants residing in the county have been fraudulently joined, in order to give the court jurisdiction over the applicant, who resides in another county, a question of fact is presented, the right to a change is not absolute, and the question of removal is one within the discretion of the court.10

1 Witter v. Taylor, 7 Ind. 110; Fisk v. Patriot, etc., Tp. Co., 54 Ind. 479. 2 Ante, sec. 46. 3 State v. Walker, 25 Fla. 561; 6 Sou. Rep. 169.

Thomas . Placerville G. Q. Min. Co., 65 Cal. 600; 4 Pac. Rep. 641. 5 Briasco v. Lawrence, 4 N. Y. Sup. 94.

6 People v. Larue, 66 Cal. 235; 5 Pac. Rep. 157; Johnson v. Walden, 12 Pac. Rep. 257.

* Kelly v. Alcona Circuit Court, 79 Mich. 392; 44 N. W. Rep. 925.

8 Joyce v. Whitney, 57 Ind. 550.

9 Watts v. White, 13 Cal. 321.

10 Walker v. Nettleton, 52 N. W. Rep. 864.

48. OTHER NECESSARY PROCEEDINGS TO PROCURE TRANSFER. -Usually an affidavit stating the facts authorizing it is all that is necessary to entitle a party to a change of venue.1 But in some of the states a written demand for the change, either before or at the time of making the necessary showing is required. And it is sometimes required that in order to divest the court in which the action is made of jurisdiction, and transfer it to the court to which the cause is to be removed, other steps shall be taken by the party making the application. As, for example, the payment or tender of the costs, or the costs occasioned by the change,3 or that the papers in the cause be transmitted to the court to which the cause is removed within a limited time. And where such conditions are imposed, even though they are required to be performed after the order for the change is made, the failure to perform them renders all prior proceedings of no effect and the jurisdiction remains where it was in the beginning.5

But, pending the time within which such conditions may be performed, the juriediction of the court is suspended, except that where the change is asked on grounds. not affecting the judge, the court may proceed with the making up of the issues in some cases, or where some further action is authorized by statute in order to preserve the rights of the parties."

But such conditions are not usually imposed where the

1 Ante, sec. 47.

2

Ante, sec. 47; Penniman v. Fuller, 133 N. Y. 442; 31 N. E. Rep. 318; New Haven Clock Co. v. Hubbard, 16 N. Y. Sup. 125; Elam v. Griffin, 19 Nev. 442; 14 Pac. Rep. 582; Pennie v. Visher, 94 Cal. 323; 29 Pac. Rep. 711.

3 Ante, sec. 24, p. 152; Oakley v. Dunn, 63 Mich. 494; 30 N. W. Rep. 96; Duncan v. Tufts, 52 Ark. 404; 12 S. W. Rep. 873; Estep v. Armstrong, 69 Cal. 536; 11 Pac. Rep. 132.

* Ante, sec. 24, p. 152; Cook v. McDonnell, 70 Wis. 329; 35 N. W. Rep. 556.

Ante, sec. 24, p. 152; Post, sec. 51; Oakley v. Dunn, 63 Mich. 494; 30 N. W. Rep. 96.

Fisher v. Cid Copper Min. Co., 105 N. Car. 123; 10 S. E. Rep. 1055. 7 Ante, sec. 24, p. 152.