395. Contents of affidavit-Pleadings, when filed. 134. The affidavit shall show distinctly in what respect the party asking the delay has been prejudiced in his preparation for trial by the amendment. When the action is continued for such cause, the party asking the delay shall file his pleadings at such time as the Court may direct. (98.)

396. Names of parties - Pleadings corrected- Relief from judgment. 135. The Court may, at any time, in its discretion, and upon such terms as may be deemed proper for the furtherance of justice, direct the name of any party to be added or struck out; a mistake in name, description, or legal effect, or in any other respect, to be corrected; any material allegation to be inserted, struck out, or modified,— to conform the pleadings to the facts proved, when the amendment does not substantially change the claim or defense. The Court may also, in its discretion, allow a party to file his pleadings after the time limited therefor; and shall relieve a party from a judgment taken against him, through his mistake, inadvertence, surprise, or excusable neglect, and supply an omission in any proceedings, on complaint or motion filed within two years. (99.)

1. The writ may be amended and the return thereon.- Evansville, etc., R. R. Co. v. Lawrence, 29 Ind. 622.

2. A mistake in names of parties may be amended.-Abshire v. Mather, 27 Ind. 381; Ferguson v. Ramsey, 41 id. 511.

3. The granting of leave to amend after issue made, and before and on the trial, is very much within the sound discretion of the Court.-Burr v. Mendenhall, 49 Ind. 496. 4. Mistake in a judgment may be corrected, or blank therein filled, whenever the record supplies the means of doing so.- Miller v. Royce, 60 Ind. 189.

5. The filing of an amended pleading supersedes the original; the latter is no longer a part of the record. -Westerman v. Foster, 57 Ind. 408.

6. On application, under the latter clause of this section, to be relieved from a judgment by default, the applicant must show a meritorious defense by affidavit. Upon this point, counter-affidavits are not allowed; but with respect to the grounds of relief, evidence will be heard on both sides.- Lake v. Jones, 49 Ind. 297; Bristor v. Galvin, 62 id. 352; State v. Howe, 64 id. 18.

7. An entry nunc pro tunc of a judgment may be made whenever the minutes and records show that such a judgment was rendered, and not entered.-Smith v. State, 71 Ind. 250.

397. Name of defendant. 136. When the plaintiff is ignorant of the name of the defendant, such defendant may be designated in any pleading or proceeding by any name; and when his true name is discovered, the pleading or proceeding may be amended accordingly, either before or after service of the summons. (100.)

398. Judgment not reversed for technical errors. 137. The Court must, in every stage of the action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment can be reversed or affected by reason of such error or defect. (101.)

1. The most liberal intendment after verdict, in support thereof, should obtain.— Indianapolis, etc., R. R. Co. v. Petty, 30 Ind. 261.

2. Exceptions moved in arrest of judgment must be much more material and glaring than those which may be made on demurrer.- Reagan v. Fox, 45 Ind. 8; Gander v. State, 50 id. 539.

399. Supplemental pleadings. 138. The Court may, on motion, allow supplemental pleadings, showing facts which occurred after the former pleadings were filed. (102.)

1. A supplemental complaint is not a substitute for the original; it is an additional

complaint, consisting of facts arising since the filing of the original. It may be filed before or after answer, by leave.- Musselman v. Manley, 42 Ind. 462.

In force September 19, 1881.]

[1881 S., p. 240. 400. Calling of causes-Completing issues. 104. On the second and each succeeding day of the term, the Court shall call as many of the causes which stand for trial at such term, for issues, as the business of the Court will permit; the Court shall call the causes in the order they stand on the docket, and shall compel the parties to file their respective pleadings and answers to interrogatories, at such time as the Court shall deem just, in no case allowing unreasonable delay; and the pleadings shall be completed at an early day of the term. (68.)

401. Judgment on failure to plead - Exception. 105. If, from any cause, either party shall fail to plead or make up the issues within the time prescribed, the Court shall forthwith enter judgment as upon a default, unless, for good cause shown, further time be given for pleading, on the payment of the costs occasioned by the delay. (69.)

1. When the defendant, having moved for a change of venue, refused to comply with a rule to answer during the pendency of the motion, judgment was properly rendered against him as upon a default.- Risher v. Morgan, 56 Ind. 172; Jelly v. Gaff, id. 331.

402. Entry-docket of Clerk. 426. The Clerk shall keep an entrydocket, wherein he shall enter all actions in the order in which they are brought, and the date of issuing the process, and the date of the judgment. Within three weeks after the adjournment of the Court, he shall make out an issue-docket for all actions then pending, and shall docket therein all cases which may be commenced previous to the first day of the next term, in their order, and furnish a copy of the same for the use of the Court. (358.)

403. Issues of fact-When tried - Damages assessed. 427. The trial of any issue of fact shall be on or after the day on which the cause is set on the docket, unless otherwise agreed by the parties. The assessment of damages, in case of default, shall be on or after the day on which the default is taken. (360.)

404. Docket entries. 428. The entry on the docket shall show whether or not the summons has been fully served or notice given in due time for trial, and whether or not the issues have been formed. (361.)

405. Judge to arrange order of business. 430. The Circuit Judges of this State shall have power, and it is hereby made their duty, by proper order, to arrange and regulate the order of business in their respective circuits; and in making such order they shall provide —

First. For the making up of issues and transaction of probate business. Second. For the trial of criminal cases.

Third. For the trial of civil cases.

406. Issues

SEC.

408. Issues of fact.

409. Causes, how tried

In force September 19, 1881.]

Distinction.

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.

369. An issue of law arises upon demurrer to reply, or to some part thereof. (317.)

370. An issue of fact arises

the complaint, answer, or 408. Issues of fact. 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.) 1. In an application for a temporary injunction or restraining order, a jury is not demandable.-Hopkins v. Greensburg, 46 Ind. 187.

[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 unable to prove such facts by any other witness whose testimony can be as readily

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.)

1. Counter-affidavits are not allowable.-Linville v. Golding, 11 Ind. 374.

2. The motion and affidavit may be made by an agent. Abbott v. Zeigler, 9 Ind.

511.

3. It is error to refuse a continuance, when properly asked.- Kent v. Lawson, 12 Ind. 675.

4. The affidavit must show by facts stated, that there is a reasonable chance of procuring the testimony of the absent witness in the time asked.- Ohio, etc., R. R. Co. . Dickerson, 59 Ind. 317.

5. An admission, that the absent witness would testify to the facts stated as true, defeats the motion.-Whitehall v. Lane, 61 Ind. 95.

6. The affidavit should show the facts constituting due diligence to obtain the attendance of the absent witness.-Pence v. Christman, 15 Ind. 257; Benson v. McFadden, 50 id. 431; Merrick v. State, 63 id. 330.

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.

[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 pending. (207.)

I. 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 ». 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 applicant 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 . 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., p. 221. In force March 10, 1873.]

1. In all cases,

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