SEC. 406. Issues -Two kinds... 407. Issues of law. SEC. 408. Issues of fact. 409. Causes, how tried - Distinction. [1881 S., p. 240. In force September 19, 1881.] 406. Issues Two kinds. 368. Issues arise on the pleadings, where a fact or conclusion of law is maintained by one party and controverted by the other. They are of two kinds : First. Of law. Second. Of fact. (316.) 1. A trial by agreement of parties, without issue, is a waiver of issue.-Inglis v. State, 61 Ind. 212; Dodds v. Vannoy, id. 89; Cogswell v. State, 65 id. 1. 407. Issues of law. the complaint, answer, or 408. Issues of fact. 369. An issue of law arises upon demurrer to reply, or to some part thereof. ~ (317.) 370. An issue of fact arises. First. Upon a material allegation in the complaint, denied by the answer. Second. Upon material new matter in the answer, denied by the reply. Third. Upon material new matter in the reply, which shall be considered as controverted by the opposite party without further pleading. (318.) 409. Causes, how tried-Distinction. 372. Issues of law and issues of fact in causes that, prior to the 18th day of June, 1852, were of exclusive equitable jurisdiction, shall be tried by the Court; issues of fact in all other causes shall be triable as the same are now triable. In case of the joinder of causes of action or defenses which, prior to said date, were of exclusive equitable jurisdiction, with causes of action or defenses which, prior to said date, were designated as actions at law and triable by jurythe former shall be triable by the Court, and the latter by a jury, unless waived; the trial of both may be at the same time or at different times, as the Court may direct: Provided, That in all cases triable by the Court as above directed, the Court, in its discretion, for its information, may cause any question of fact to be tried by a jury, or the Court may refer any such cause to a Master Commissioner, for hearing and report. (320.) I. In an application for a temporary injunction or restraining order, a jury is not demandable.-Hopkins . Greensburg, 46 Ind. 187. SEC. ARTICLE 13-CONTINUANCES. 410. Continuance on affidavit. SEC. 411a, Cause for continuance, [1881 S., p. 240. In force September 19, 1881.] 410. Continuance on affidavit. 374. A motion to postpone the trial on account of the absence of evidence can be made only upon affidavit, showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it, and where the evidence may be; and if it is for an absent witness, the affidavit must show the name and residence of the witness, if known, and the probability of procuring the testimony within a reasonable time, and that his absence has not been procured by the act or connivance of the party, nor by others at his request, nor with his knowledge and consent, and what facts he believes the witness will testify to, and that he believes them to be true. and that he is unableto prove such facts by any other witness whose testimony can be as readus procured. If, thereupon, the adverse party will consent that, on the trial, the facts shall be taken as true, if the absent evidence is written or documentary, and, in case of a witness, that he will testify to said facts as true, the trial shall not be postponed for that cause; and, in such case, the party against whom such evidence is used, shall have the right to impeach such absent witness, as in case where the witness is present or his deposition is used. (322.) 411. Continuance by Court-Proviso. 375. Any Court, for good. cause shown, may continue any action at any stage of the proceedings, at the cost of the applicant, to be paid as the Court shall direct: Provided, That if, by reason of an amendment to the pleadings, a party who would otherwise be ready for trial be compelled to obtain a continuance, it shall be at the costs of the party making the amendment. (323.) 1. The action of the trial-Court under this section will not be reversed, except in a clear case of injustice.-Whitehall v. Lane, 61 Ind. 95. [1893 S., p. 16.` In force February 6, 1893.] 411a. Cause for continuance. 1. That whenever any plaintiff or defendant in a civil action or a defendant in a criminal action, shall make an affidavit that his or her attorney is a member of the general assembly of the state of Indiana, and that the general assembly is in session, and further that such attorney was employed in the cause as his or her chief attorney before the beginning of such session and before the election of such attorney to the general assembly, and that such attorney is the only attorney employed by such affiant in any such cause, or that such attorney is the only attorney employed by such affiant who is prepared to try such cause for any such affiant; and upon such affidavit move the court for a continuance of such cause, the court shall grant the same until three days after the adjournment of the then session of such general assembly. ARTICLE 14-CHANGE Of venue. [1881 S., p. 240. In force September 19, 1881.] 412. Causes for. 255. The Court in term, or the Judge thereof in vacation, shall change the venue of any civil action upon the application of either party, made upon affidavit showing one or more of the following causes: First. That the Judge has been engaged as counsel in the cause prior to his election or appointment as Judge, or is otherwise interested in the cause. Second. That the Judge is of kin to either party. Third. That the opposite party has an undue influence over the citizens of the county, or that an odium attaches to the applicant, or to his cause of action or defense, on account of local prejudice. Fourth. When the county is a party to the suit. Fifth. Showing to the satisfaction of the Court that the convenience of witnesses and the ends of justice would be promoted by the change. Sixth. That the Judge of the Court wherein such action is pending, is a material witness for the party applying for such change. 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 pend ing. (207.) 1. One or more co-parties can take a change of venue, and thus change the venue as to all. Krutz v. Howard, 70 Ind. 174. 2. Change of venue is authorized in a claim against a decedent's estate. Lester v. Lester, 70 Ind. 201. 3. When more than one change has been granted to a party, and he appears to the action in the last venue ordered, he can not afterward object to the jurisdiction of any of the prior Courts or Judges therein.-Yates v. State, 58 Ind. 299. 4. An affidavit based upon objections to the Judge must be made and signed by the party in person.-Stevens v. Burr, 61 Ind. 464. 5. But one change can be granted to a party for the same cause.-Hutts v. Hutts, 62 Ind. 240. 6. A rule of Court, requiring the affidavit to state more than the statute requires, is void.— Krutz v. Howard, 70 Ind. 174. 413. Change from county-Costs-One change. 256. When a change of venue is directed for any of the causes mentioned in the third, fourth, and fifth specifications of the preceding section, the Court or Judge shall designate the county to which the venue shall be changed (which may be in the same or in an adjoining circuit, as may be deemed best for the furtherance of justice), and shall prescribe the time within which the appli cant shall pay the costs of the change; and the Clerk of the Court in which the suit is pending, as soon as the costs of the change are paid, shall forthwith transmit all the papers and a transcript of all the proceedings to the Clerk of the Court of the county to which the venue is changed; and the Clerk of the proper Court shall receive the papers and transcript, giving a receipt therefor, and docket the action in its order among the other causes of the Court; and the action shall stand for trial at the first term, and shall be tried or otherwise disposed of in the same manner as if the cause had originated in that Court. If the party fail to pay the costs of the change within the time prescribed by the Court, he shall be taxed with all the costs made in the case up to the time of such failure, and shall not be entitled to a change of venue from the county. Only one change of venue shall be granted to the same party from the county, and only one from the Judge. (208.) 1. When a change of venue is granted but not perfected by the party, the Court granting it may disregard the order and try the cause.- - Snyder v. Bunnell, 64 Ind. 403. 2. In a civil action, the venue may be changed to a county in another circuit.— Cromie v. Hoover, 40 Ind. 49. 3. Refusing a change of venue is cause for new trial, but can not be primarily assigned in the Supreme Court as error.- Berlin v. Oglesbee, 65 Ind. 308. 4. When a rule to plead is pending against a party, the Court may suspend its action upon a motion to change the venue from the county, until it be complied with. - Risher v. Morgan, 56 Ind. 172. 5. The failure of a Judge appointed to appear does not work a discontinuance.— Glenn v. State, 46 Ind. 368. [1873 S., I. In all cases, p. 221. In force March 10, 1873.] 414. Payment to county of expenses of trial. where there has been or shall be a change of venue from one county to another, the county from which the change of venue shall have been or shall be taken shall be liable to pay to the county to which such change shall have been or shall be taken all such expenses as shall have been or shall be incurred by such county to which such change shall have been or shall be taken, in consequence of such change, and in all cases, the fees paid by such county to the jury trying the case, and any of the regular panel not engaged in such trial, allowance to bailiffs, and all other expenses necessarily incurred by such county, and consequent upon such change of venue and the trial of such cause. Such expenses shall be audited and allowed by the Court to which such cases shall have been changed; and such Court shall certify such allowance to the Auditor of the county from which the change of venue was first taken; and such Auditor shall issue his warrant on the Treasurer of the county for the amount so allowed and certified. [1881 S., p. 240. In force September 19, 1881.] 415. Change from Judge. 257. When the change of venue is granted for any of the causes named in the first, second, sixth, or seventh specifications mentioned in the above section [8412], the Court or Judge shall call a Judge of any Circuit, Superior, or other Court of general jurisdiction, or any Judge of the Supreme Court, to preside in such case, and try the same; or, if it shall be difficult, in the opinion of the Court, for any cause, to procure the attendance of such Judge, the Court, in order to prevent delay, may appoint any competent and disinterested attorney of this State, in good standing, to act as Judge in said cause, who, if he consent to serve, shall be qualified as other Judges, and his appointment and oath shall be filed with the Clerk and entered on the order-book; and he shall have power to hear and determine said cause until the same is finally disposed of, or change the venue thereof in proper cases. 416. Pay of special Judge. 258. When a Judge is called upon to preside in the place of the regular Judge, either at a regular or an adjourned term, whether selected from the bench or bar, he shall be allowed the sum of five dollars per day for the time actually served, and in going to and returning, to be paid as follows: On the presentation of an order made by the Court for the allowance, specifying the time of service, supported by an affidavit of the special Judge, that he actually served such time; and an affidavit of the regular Judge, if any, stating the reason for the services of such special Judge, the same shall be paid out of the county treasury for the time being, for which the county shall have credit on settlement of the Treasurer with the State: Provided, That in all cases where a special Judge shall be called, the compensation paid, as herein provided, shall be deducted by the Auditor of State from the pay of such regular Judge, except when such special Judge is called to preside in cases on change of venue, or when such regular Judge shall have a pecuniary interest in, be a party to, or be related to any party to said suit by blood or marriage, or may have been of counsel in any such cause pending, or may be absent on account of serious illness of himself or family. 417. No change in vacation-Exception. 259. No change of venue shall be granted in vacation, unless the opposite party has had ten days' notice. (209.) 435. Foreign deposition, how taken - Notice, 436. Filing Continuance, when had. 437. Publication, when had. 438. Objections to competency, 439. Objections to validity. 440. When used in another action. 441. Perpetuating testimony - Notice. 445. Record and copy - Evidence. 447. Unimportant deviation. 448. Adverse party, when allowed expenses. 449. Taking by interrogatories- Proviso. [1881 S., p. 240. In force September 19, 1881.] 418. Before whom taken. 287. Depositions of witnesses, taken within or without the State, may be taken, according to the regulations hereinafter provided, before any Judge, Justice of the Peace, Notary-Public, Mayor or Recorder of a city, Clerk of a Court of record, or Commissioner appointed by the Court to take depositions; but depositions shall not be taken before any person being of kin to either party or interested in the action. (245.) 1. The deposition of a party to the suit may be taken under the same rules as that of any witness.- Bourgette v. Hubinger, 30 Ind. 296. 2. It is proper for a witness who deposes to the identity of a written instrument to attach a copy thereof to the deposition.-Gimbel v. Hufford, 46 Ind. 125. 3. The officer taking the deposition can not decide legal questions.-Carpenter v. Dame, 10 Ind. 125. 4. Both parties may take the deposition of the same witness, and either party may use both depositions.- Woodruff v. Garner, 39 Ind. 246. 419. Notice Contents-Service. 288. A party wishing to take depositions shall give notice to the adverse party, if there be only one person; if there be several, to any one of them who is a real party in interest, his agent or attorney. Such notice shall specify First. The cause or matter in which the deposition is to be used. · Second. The Court or tribunal in which the trial is to be had. Third. The time and place of taking the deposition, and the names of the witnesses. (246.) 1. Notice may be served on an attorney, and the service proved by his written acknowledgment.- Coffin v. Anderson, 4 Blackf. 395. 2. The service of a notice by copy is good.-Prather v. Pritchard, 26 Ind. 65. 3. The suppression of a deposition does not necessitate the special leave of the Court to take another of the same witness.-Ramsey, Flannagan, 33 Ind. 305. 4. A deposition can not be re-taken without leave.— Kirby v. Cannon, 9 Ind. 371, 5. A party or his attorney may write the questions, but not the answers.- - Snyder v.. Snyder, 50 Ind. 492. 420. Time to travel, etc., allowed. 289. The adverse party shall be allowed a reasonable time to travel from his usual place of abode to the place of taking the deposition, by the ordinary route of travel, exclusive of the day of service, the day of taking the deposition, and intervening Sundays. If served on an attorney or agent, a reasonable time shall be allowed him to communicate the same to the party. (247.) 1. The Courts will judicially notice the facilities for travel in determining the time given. Manning v. Gasharie, 27 Ind. 399. 421. Notice, how served. 290. The notice may be served in the same manner, and by any person authorized to serve a summons for a witIf neither the party nor his agent or attorney reside in this State, the notice may be filed in the Clerk's office, or published three weeks suc cessively in the county in which the suit is pending. (248.) ness. 422. When Court may order taking. 291. In all actions, the |