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(146 N.E.)

ington; that the officers of appellee com-, one. Neither would this court be justified in pany had chosen a site for its dam and res- setting aside the judgment of the circuit ervoir which embraced the lands of appel- court upon the weight of evidence, if any, lants sought to be condemned, and had ask- tending to show that the petitioner really ed appellants to sell it to them for $70 per meant to devote the property to a private acre, which they offered to pay for it, but use, where there was other evidence to which appellants refused, unless appellee would that court obviously gave credit sufficient to buy all of their land and pay them $150 per support its decision. acre; that appellants had 65 acres which appellee did not need; that appellee then offered appellants $17,000 for the land, letting appellants keep the timber, but the offer was refused.

[2] The trial court had the right to infer from this evidence that appellee is incorporated as a water company having the franchise right and charged with the public duty to supply water to the city of Bloomington and its inhabitants, and that it had a franchise from the county and a franchise contract with the city under which it would be bound to and could perform that duty, and that it was actively proceeding with plans and arrangements to construct a plant for that purpose. This sufficiently established the fact, as found by the court, that appellee had the right to exercise the power of eminent domain for the use intended. Sections 5123, 5124, Burns' 1914 (sections 1 and 2, c. 95, p. 195, Acts 1889, as amended by section 1, c. 123, p. 243, Acts 1895); sections 10052d5, 10052e5, Burns' Supp. 1921 (sections 1 and 2, c. 98, p. 216, Acts 1921).

[3] The fact that the plant was not yet built and in operation could not prevent appellee from exercising the right to appropriate lands on which to construct such plant. An express grant of statutory authority to take lands for that purpose will not be given a construction which would have the practical effect of nullifying the grant. Pocantico Waterworks v. Bird, 130 N. Y. 249, 29 N. E. 246.

The evidence above set out, if believed and acted on by the trial court, fully justified the decision and order appealed from. And we must presume that any evidence which there may be to the contrary was not given credit by the trial court. The judgment is affirmed.

SHAW v. STATE. (No. 24566.)

(Supreme Court of Indiana. March 18, 1925.) I. Judges 51 (4)—Imperative duty of judge to grant change of venue from judge, where affidavit complies with statute and is timely.

Where an affidavit meets requirements of Burns' Ann. St. 1914, § 2074, and is timely presented to trial court for change of venue from the judge, it is imperative on the court to grant it.

2. Judges 51(3)-Words. "and is informed," in affidavit for change of venue from judge, otherwise complete, held not to render affidavit incomplete.

Where a verified affidavit under Burns' Ann. St. 1914, § 2074, for change of venue because of prejudice of judge, stated sufficient grounds therefor, held, that addition of words "and is informed" did not modify or lessen the effect and force of such affidavit, and, as court to such affidavit, oral remarks of defendant in is without authority to examine defendant as response to questions by judge must be disregarded, and hence, application complying with statute, denial of change was erroneous.

Appeal from Criminal Court, Marion County; James A. Collins, Judge.

John Shaw was convicted of murder in the first degree, and he appeals. Reversed and remanded, with instructions.

[4, 5] Evidence tending to show that appellee probably would furnish water to the inhabitants of Bloomington indirectly, by selling the water to the city for distribution through the mains and pipes of the municipal water plant, or by leasing its waterworks Russell B. Harrison, Clyde P. Miller, Wm. to the city for use in connection with the S. Henry, and Joseph K. Brown, all of Inmunicipal water plant, did not prove appel-dianapolis, for appellant.

lee to be any less a public utility, with the power of eminent domain. There was no evidence which even tended to prove that the dam, reservoir, pumping station, water mains, and accessories, for the construction of which appellant's lands were taken, would be used for any other purpose than supplying the city and its inhabitants, and the public of that vicinity, with water, or that they would fail to be used for that purpose. And the mere fact that this might be done indirectly, through lawful contracts with the city, whether by way of lease or otherwise, would not make the use any less a public

U. S. Lesh, Atty. Gen., for the State.

PER CURIAM. Appellant, upon a twocount indictment, was tried and convicted in the criminal court of Marion county, Ind., of murder in the first degree. Judgment that he suffer death. Sections 2235, 2196, Burns' 1914. The overruling of appellant's motion and his supplemental motion for a new trial are each separately assigned as error. One of the several causes in support of the original motion was that the court erred in refusing to grant appellant's application for a change of venue from the judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

We have examined carefully the record at, bar, and from which we are thoroughly convinced that the court erred in refusing to change the venue. None of the other causes in either motion will likely arise upon another trial, nor are they such that any real benefit would be gained in the way of a precedent if they were decided. We will therefore limit our consideration to the specific cause for a new trial to which we have called attention. The reader of this opinion may be interested in a brief statement of the facts in this

case leading up to and including the ruling on the motion in question. On December 12, 1923, an indictment was returned into the criminal court of Marion county, Ind., charging, in substance, that appellant, on or about November 28, 1923, at said county and state, in the manner therein stated, murdered a human being. On December 13, 1923, the trial court, upon its own motion, and as a part of the proceedings in that action, caused an order book entry to be made, in part as follows:

"On account of the seriousness of the charge and the public excitement growing out of the arrest and indictment of said defendant, and to assure the defendant a fair and impartial trial, provided by the Constitution and laws of this state, the court now appoints H. B. Pike and C. H. Thurston, attorneys in good standing at this bar, to defend said John Shaw."

On the same day the court directed the sheriff to permit the attorneys so appointed to "confer with the defendant at such hours as is consistent with the rules of the jail that they may make proper preparation for his defense." On December 15, 1923, the trial court ordered a special venire of 50 persons to be drawn by the jury commissioners for service as petit jurors in the case of State v. Shaw, for trial December 19, 1923. On December 18, 1923, William S. Henry and Joseph K. Brown, attorneys, on behalf of appellant, presented to the court a motion for a continuance, by appellant properly verified, showing, among other things, that the employment of these attorneys by relatives of appellant was consummated on the 15th inst., and that it had been impossible for them to properly prepare his defense within the time of their employment and that he should be granted a continuance. This motion was overruled, and on the 19th inst. the attorneys for appellant so appointed by the court presented a motion to quash the indictment, which motion was then and there overruled, and upon the arraignment of appellant he pleaded not guilty. Thereupon William S. Henry and Joseph K. Brown, attorneys appearing for appellant, filed and presented to the court appellant's verified motion for a change of venue from the judge, which motion and affidavit, omitting the caption and

"Comes now the defendant in the aboveentitled cause, who would respectfully represent and show the honorable court that he is the defendant in said above-entitled cause and

that this defendant says that he cannot have a James A. Collins, judge of Marion county crimfair and impartial trial before the Honorable inal court for the following reasons, to wit:

"On account of the bias and prejudice of said judge against this affiant as such defendant, and which bias and prejudice this affiant says now exists.

"Affiant further says, that the bias and prejudice of said judge against this affiant as such fiant, and that as soon as said bias and prejudefendant has just been discovered by said afdice was discovered, said affiant made this petition for a change of venue from said judge. James A. Collins, of Marion county criminal court.

"Wherefore affiant prays the honorable court that he be granted a change of venue from said judge and for all other proper relief the court deems just and proper in the premises. "John Shaw.

"Attorneys for Defendant. "State of Indiana, County of Marion, ss:

"Comes now John Thomas Shaw who first being duly sworn upon his oath deposes and says: That the matters and facts set forth in the above petition for a change of venue are true in substance and in fact as he verily believes and is informed. John Shaw."

The record then discloses that"On receiving said motion the judge called the defendant to the bench and asked him if he had consulted with the attorneys appointed to defend him concerning his motion, and he said 'No, that he knew nothing about it until the attorneys Henry and Brown had asked him to sign it.'”

The court overruled the motion, "to which ruling the defendant by his counsel at the time excepts." Immediately thereafter, counsel began impaneling the jury. On December 24, 1923, appellant was convicted. For the purposes of this opinion, further recitals are

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But for the addition of the words "against him," following the words "prejudice of the judge," this statute has been in force in this state since 1852. 2 R. S. 1852, p. 370.

[1] It has been the settled law of this state for many years that where an affidavit meets the requirements of this statute, and is timely presented to the trial court for a change of venue from the judge, it is imperative upon the court to grant it. Goldsby v. State (1862) 18 Ind. 147; Mershon v. State (1873) 44 Ind. 598; Manly v. State (1875) 52 Ind. 215; Duggins v. State (1879) 66 Ind. 350;

(146 N.E.)

155, 899; Munce v. State, 187 Ind. 263, 118 not modify or detract from the words previousN. E. 953. ly employed."

In the instant case the time of making the application to the court is not questioned. Counsel for the state concede that the court has no discretion in granting a change of venue from the judge when an adequate affidavit therefor is presented, but they do insist that the affidavit is not sufficient for the reason: (1) That the bias and prejudice of the judge was not sworn to as a positive fact; and (2) the statement of appellant to the court clearly indicated that the requested change came from his attorneys and not from him, and hence the general rule that a court has no discretion in granting a change of judge does not apply.

In Leigh v. Green, 64 Neb. 533, 536, 90 N. w. 255, 256 (101 Am. St. Rep. 592), the gen

eral rule there announced is:

"That an oath taken before a competent officer merely verifies truth of the facts stated, according to the best knowledge, information, and belief of the affiant."

So that

"To expressly state that which in the absence of such statement would be necessarily implied affects only the form, and not the substance, of the affidavit." Leigh v. Green, 62 Neb. 344, 349, 86 N. W. 1093, 1095 (89 Am. St. Rep. 751, 756).

In the case of Champ v. Kendrick, 130 Ind. 549, 30 N. E. 787, the verification of a complaint by an affidavit, "that the matters and things set forth in the foregoing complaint are true as he is informed and believes," was regarded as the equivalent to swearing that the facts in the complaint were true. Simpkins v. Malatt, 9 Ind. 543; Koch V. District Court, 150 Iowa, 151, 129 N. W. 740; Election Cases, 65 Pa. 20, 30.

[2] The application and affidavit in the instant case must be regarded as a single instrument, or, we may say, they together constituted appellant's application verified by himself and upon which he relied for the relief he asked. Thus considered, the application states: (1) "That he cannot have a fair and impartial trial" before the presiding judge "on account of the bias and prejudice of said judge" against him, which now exists; and (2) "that the matters and facts set forth" above "are true in substance and in fact," qualified by the words "as he verily believes and is informed." Had appellant omitted the foregoing qualifying phrase, there would be no room for the state's contention, but does the phrase "as he verily believes and is informed" render facts direct-absolute verity of facts was required, or the ly stated insufficient when they otherwise would be admittedly sufficient under the statute to require a change of venue from the judge?

The statute contemplates a showing by affidavit of what the defendant believes to be the fact, that he cannot have "a fair trial, owing to the bias and prejudice of the judge" against him. The maker of an affidavit of the character now being considered, in the very nature of things, cannot know the true state of mind of the presiding judge, and for that reason obviously he must act and make oath upon his belief. If we should grant the contention of the state, that under the statute the bias and prejudice of the judge must be stated as a positive fact, still appellant's verified application would be sufficient and well within the rule stated in the following

cases:

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The persuasive argument of the state in support of her insistence would be quite influential if the verified application, in form, was "that as the affiant is informed and believes, or has good reason to believe," that certain facts exist, instead of that certain facts are true as affiant verily believes, or if

verified application was evidentiary in character of facts which required proof, then to state them, not as facts but as matters of belief and opinion, would not suffice. But in

the instant case the statute, supra, granted appellant the right and provided the terms which, if complied with, gave him the privilege of demanding arbitrarily a change of judge. This conclusion must be correct for the reason there is no issue of fact to be determined or matter calling for the exercise of judicial discretion which would permit a judge to sit in judgment upon the question of his own qualifications. State v. Witherspoon (1910) 231 Mo. 706, 716, 133 S. W. 323; 16 C. J. 203, note 56.

The state places some reliance upon the answers of appellant to questions by the ated to make the questioned ruling by the ancourt. It may be that the court was actuswers of appellant, and that the court was prompted to question appellant by reason of the words, "and is informed," following the words "as he verily believes"; but in our opinion the words, "and is informed," do not lessen the force and effect of the words they follow, for the reason that the source of ap

In Pratt v. Stevens, 94 N. Y. 387, the pellant's information upon which he rested court said:

"The addition of the words, 'to deponent's best knowledge, information and belief,' does

his belief was not material or a proper subject of inquiry. The law does not contemplate such procedure as a basis for a ruling

106-Judgment awarding value

of property and damages held valid.

upon the question then before the court. | 6. Replevin
Hence the oral remarks of appellant in re-
sponse to the questions by the judge must be
disregarded.

For the reasons stated, we hold that the application in question embraces the essential requirements of the statute applicable to changes of venue from the judge. Such being the case, it was error to refuse the change. This conclusion compels a reversal of the judgment.

Judgment reversed and the cause remanded, with instructions to sustain appellant's motion for a new trial, and for further proceedings not inconsistent with this opinion.

It is further ordered that the clerk of this court make and certify to the warden of the Indiana State Prison the usual order for the return of appellant to the custody of the sheriff of Marion county, Ind.

SHAVER V. KAPPELLAS et al. (No. 12059.) (Appellate Court of Indiana, Division No. 2 March 12, 1925.)

1. Principal and surety 59-Rule that surety is favorite of law applies only after ascertainment of meaning of contract.

The rule that the surety is a favorite of the law is not one of construction, but one of application of the contract after its meaning has been ascertained.

2. Replevin 119-Replevin bond to be interpreted like any other contract.

Judgment awarding value of property and damages, based on finding of impossibility of redelivering specific property, held valid under Burn's Ann, St. 1914, § 599.

7. Replevin

123-Tender of return of property; where judgment was for value of property and damages, was ineffective.

Tender of return of property, where judgment was for value of property and damages, was ineffective to discharge surety. 8. Replevin 134 Replevin judgment, together with record and files on which based, held admissible in action on replevin bond.

In action against surety on replevin bond, the judgment obtained in the replevin action, together with record and files on which it was based, held admissible against surety.

9. Replevin 134 Execution of replevin bond held sufficiently proved to authorize its admission in evidence.

In action against surety on replevin bond, where defendant admitted his signature to the bond, and sheriff had accepted and indorsed his approval thereon, the execution of the bond was sufficiently proved to authorize its admission in evidence.

Appeal from Circuit Court, Porter County; H. H. Loring, Judge.

Action by Tom Kappellas against the South Shore Auto Company and Eugene L. Shaver. Judgment for plaintiff, and defendant Shaver appeals. Affirmed.

Ibach, Gavit, Stinson & Gavit, of Ham

A replevin bond is to be interpreted like mond, for appellant. any other contract.

3. Principal and surety 145 (1)—Surety on replevin bond submitted himself to jurisdiction of court, and was bound by judgment against his principal.

Surety on replevin bond by signing it submitted himself to jurisdiction of court in which action was pending, was bound by judgment against his principal, and could not, in an action on the bond, collaterally challenge the validity of the judgment.

Sheehan, Lyddick & Sharawsky, of Gary, for appellees.

NICHOLS, J. Action by appellee, Kappellas, hereinafter mentioned as appellee, against appellant and the South Shore Auto Company, to recover on a replevin bond alleged to have been executed by appellant as surety and said auto company as principal. It is averred in the complaint that the ap pellee brought his action in replevin against

4. Replevin 105-Judgment in replevin held said auto company for the recovery of an one for return of property.

Judgment in replevin, providing that plaintiff recover of defendant the possession of the automobile sued for, held one for the return of the property, within conditions of replevin bond. 5. Replevin123-Tender not kept good held insufficient to release surety from liability on replevin bond.

Where a judgment in replevin was in the alternative, for a return of the property or for the value thereof, together with damages, a tender of the property and of the damages, which was not kept good by bringing the money and the property tendered into court, delivering, or offering to deliver them to plaintiff, was insufficient to relieve surety on the replevin bond.

automobile, and that a writ of replevin was duly executed and served upon said auto company, and that said company, with appellant as surety, executed and delivered a replevin bond which was set out in the complaint, and, over the objection of appellant, was read in evidence, and which, omitting caption, was in the following words:

"We, the undersigned, undertake and agree that we are firmly bound unto the plaintiff in the above-entitled cause of action, to the effect that said defendant shall safely keep the property this day taken under a writ of replevin in the above-entitled cause of action, and that the same shall not be in any way injured or damaged, and that said defendant will deliver the same to the plaintiff if judgment

Ind.)

SHAVER V. KAPPELLAS
(146 N.E.)

filed; that at or just prior to the time of the
bringing of this action, the defendant auto
company unlawfully sold, conveyed, and dis-
posed of said auto, and does not now have
the same, and its whereabouts is unknown,
and that appellee's damage for the wrong-

should be rendered to that effect, and that
said defendant will pay to said plaintiff all
such sums of money as the plaintiff may recover
in the above-entitled cause of action, and upon
which said events this obligation shall be void;
otherwise, to be in full force and effect. South
Shore Auto Company, a Corporation, by James
K. Stinson, Pres., E. L. Shaver, Treas. E. Lful detention thereof is $90; that appellee is
Shaver."

It is averred that the bond was approved by the sheriff and property returned to the auto company, but that said company did not safely keep the property, and on November 12, 1922, appellee recovered judgment against said company for the value of said automobile in the sum of $1,000 and $90 damages for its detention, and that such judgment has not been paid. There was an answer in general denial, and a second paragraph of non est factum, with a stipulation that all defenses, legal and equitable, might be given under the general denial. The cause was submitted to the court for trial, and, after hearing the evidence, the court made its finding, and rendered judgment in favor of appellee for $1,171.75. The error relied upon in this court is the action of the court in overruling appellant's motion for a new trial, which presents the insufficiency of the evidence, that the decision of the court was contrary to law, and error of the court in admitting certain evidence.

[1-3] Appellant was the surety upon the bond in suit, and contends that for that reason he was a favorite of the law, and as such was bound only by the actual and strict terms of his contract. But such a ruling in favor of a surety, even if it is applicable where, as here, the surety is apparently interested with his principal, is not a rule of construction, but a rule of application of the contract after its meaning has been ascertained, and the bond in suit is to be interpreted like any other contract, and by the usual rules. By the expressed and unambiguous terms of the bond, appellant bound himself that the auto company would deliver the property to appellee if judgment should be to that effect, and that the auto company would pay to the appellee all such sums of money as appellee might recover in the By signing the replevin replevin action. bond appellant submitted himself to the jurisdiction of the court in which the action was then pending, and was thereby bound by the judgment against his principal, the auto company, within the limits of his bond. Moore v. Kepner, 7 Neb. 291; Schott v. Youree, 142 Ill. 233, 31 N. E. 591; Hershler v. Reynolds, 22 Iowa, 152; Wells v. Griffin, 2 Head (Tenn.) 568.

The finding and judgment in the replevin action was introduced in evidence over the objection of appellant, and is, in substance, that appellee was the owner and entitled to the possession of the automobile of the value of $1,000 at the time the complaint was

entitled to recover from the auto company
the possession of said automobile, but due to
the fact that a delivery thereof cannot be
had, appellee is entitled to recover the value
thereto, to wit, $1,000, together with the sum
of $90 damages for the wrongful detention
thereof. On this finding it was adjudged
that appellee was and is the owner of and
entitled to the immediate possession of the
property of the value of $1,000 at the time
of the filing of the complaint; that the auto
company unlawfully detained and detains
the same from appellee; that appellee re-
cover of the auto company the possession of
the same, but that due to the fact that the
same and cannot redeliver it, and a deliv-
company unlawfully sold and disposed of
ery thereof cannot be had, that appellee re-
ue in the sum of $1,000, and that appellee
cover of and from the auto company its val-
recover of the auto company the said sum
of $90 as damages for the unlawful and
with costs of this action.
wrongful detention of said property, together

Appellant, by signing the bond, having sub-
mitted himself thereby to the jurisdiction of
the court, under the above authorities was
bound by the judgment rendered in that
cause, the same being within the issues as
well as the principal, and cannot now be
Jackson v.
heard in this action collaterally to challenge
the validity of the judgment.
Morgan, 167 Ind. 528, 78 N. E. 633.

[4, 5] One of appellant's contentions is that there was no judgment for the return of the property, but we do not so construe the judgment. It is therein expressly adjudged that "plaintiff recover of defendant the posIt is true that the session of the same" (meaning the automobile theretofore mentioned). finding and the judgment stated that the auto company had unlawfully sold and disposed of the property, and that it could not therefore redeliver the same to appellee, and thereupon gave judgment in favor of appellee for the value of the property. But that appellant understood that it would be relieved from the monetary judgment if it redelivered the property to appellee, that the judgment was in the alternative, is evidenced by the fact that thereafter, in some way not disclosed, it obtained possession of an automobile claimed to be the one involved, and made efforts to return it to appellee. this, however, appellant failed, for, conceding but not deciding that the tender of the automobile and of the damages was at the time sufficient, appellant failed to keep it good by bringing the money tendered and

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