DISSENTING OPINION. I cannot agree with the majority opinion in this case.
This is an original action brought in this court to compel by mandate, the granting of a change of venue by Arthur E. DeBaun, as judge of the Sullivan Circuit Court.
It appears from the petition that a civil suit was commenced in the Clay Circuit Court in the month of May, 1925, by complaint filed by this relator against Albert J. Winning, et al. The cause was put at issue in the Clay Circuit Court and then a change of venue was granted from said Clay Circuit Court to the Sullivan Circuit Court of Sullivan county, on application of the plaintiff. That after the cause was filed in the Sullivan Circuit Court one of the defendants filed an affidavit for change of venue from the judge in said cause. *Page 671 That the affidavit was in due and legal form, setting out the cause of bias and prejudice of said judge and was duly verified. The judge of said court was this defendant, Arthur E. DeBaun, who was the qualified and acting judge of said Sullivan Circuit Court. That the defendant filed the affidavit for change of venue on the forty-fourth judicial day of the February term 1926, of said Sullivan Circuit Court. That upon the filing of said verified motion for change of venue the said judge acted thereon immediately and refused the change of venue asked by the defendant, and refused to name any judges or attorneys from whom a special judge could be selected. That before that time the defendant had not made and filed any application for change of venue in said cause. That according to the rules of said court the affidavit for change of venue must be filed not less than five days before the trial day of the cause. That this affidavit was filed more than six days before the date of trial, which was set for April 15, 1926. The complaint also alleges that the trial with Judge DeBaun, sitting as judge, would be a nullity and this court is now asked to issue a mandate against Arthur E. DeBaun, as judge of said Sullivan Circuit Court, directing and commanding him to grant a change of venue in said cause, and follow the statute in granting a change of venue as provided by the law of the State of Indiana.
In this case the issues were made up in the Clay Circuit Court in the case of McGarr v. Winning, et al., before the case was sent to Sullivan county on change of venue. And no proceedings or motion of any kind or character had been filed in the Sullivan Circuit Court prior to the filing of the affidavit for change of venue from the judge by one of the defendants, named Frank Bolt. His motion for a change of venue was overruled and exceptions taken to the ruling of the court. That William McGarr, plaintiff in that suit, at no time filed *Page 672 an affidavit for a change of venue from the judge in the case ofWilliam McGarr v. Albert Winning, et al., and at no time asked the judge for a change of venue in said cause; and the only application for change of venue was made by said defendant, Frank Bolt.
Section 442 Burns 1926, provides that 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: The seventh cause is, 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. An affidavit based on objection to the judge on account of bias, prejudice or interest must be made and signed by the party in person. Stevens v. Burr (1878), 61 Ind. 464;Fidelity, etc., Co. v. Carroll (1917), 186 Ind. 633, 117 N.E. 858.
The affidavit for change of venue was filed by one of the defendants and in this proceeding this court is asked to mandate the judge of the Sullivan Circuit Court, to grant a change of venue on the oral request of the plaintiff upon the affidavit of the defendant. The plaintiff argues that he made a demand on the trial judge to grant the change to the defendant, but we know of no statute requiring or permitting the court to grant a change of venue from the judge, otherwise than as prescribed by the statute, which requires that the affidavit for the change must be executed by the party in person who seeks the change. The right to a change of venue is statutory and before a litigant can claim that right he must bring himself within the provisions of the statute under which he claims.
When an affidavit for change of venue is made based on bias, prejudice or interest of the judge, the court has no discretion in the case but is required to grant the change. Fidelity, etc.,Co. v. Carroll, supra. But that *Page 673 is not the case before us. If the plaintiff had filed an affidavit for change of venue from the judge on account of bias and prejudice of the said judge, we would have a different question for decision. The relator seeks to mandate the judge of the Sullivan Circuit Court to grant a change of venue in a case in which the plaintiff has not asked a change in the manner required by statute and seeks to require the judge of the Sullivan Circuit Court to grant the change on the application of his adversary.
Section 1244 Burns 1926, provides that writs of mandate may issue out of the Supreme Court to the superior, circuit or criminal courts of this state, respectively, compelling the performance of any duty enjoined by law upon the said courts, including the granting of a change of venue from the county, where such change of venue is allowed by law and timely, proper and sufficient motion and affidavit have been filed therefor, and such change of venue has been refused. In the instant case the change is sought from the judge and not from the county.
It is a well-settled proposition of law that a writ of mandate will be issued only in the case where the facts show a clear legal right on the part of the relator to the relief sought and a clear legal duty resting on the defendant to do and perform the thing demanded. State, ex rel., v. City of Indianapolis (1919), 188 Ind. 685, 123 N.E. 405; State, ex rel., v. Foland,Auditor (1921), 191 Ind. 342, 132 N.E. 674.
The refusal of a court to grant a change of venue in a proper case renders the subsequent proceedings erroneous, but not void.State, ex rel., v. Gleason (1918), 187 Ind. 297, 119 N.E. 9.
A wrong decision may constitute error, but it does not destroy jurisdiction. It is quite clear that a refusal *Page 674 of a judge of a superior court to call in another judge does not destroy jurisdiction, although it may be a palpable wrong, entitling the injured party to relief in a direct attack.Stockton v. Ham (1913), 180 Ind. 628, 102 N.E. 378; Turner,Sheriff, v. Conkey (1892), 132 Ind. 248.
It is well settled that a proceeding by mandamus will not lie where the party applying for the writ has an adequate legal remedy. The petitioner in this case has an adequate legal remedy. It appears from the record that he has not filed a motion for change of venue from the judge. He has a right under the statute to do so. The decision of a trial court in holding that a change of venue is not allowed by law in a case between adversary parties pending in such court cannot be reviewed and reversed by this court in an action by one of such parties brought against the judge refusing to grant the change of venue. The rights of the other party to the case pending in the trial court would be affected by such a decision and he would not be given an opportunity to be heard. State, ex rel., v. Wrigley, Judge (1918), 187 Ind. 78, 118 N.E. 353.
In the matter of this petition, the defendants in the suit ofMcGarr v. Winning, et al., are not in court and if a change of venue was granted in this case, their rights would be affected without their having an opportunity to be heard. As to the right of a litigant to control the case of his adversary, see, Baird,Sheriff, v. Nagel (1924), 194 Ind. 87, 142 N.E. 9; Coleman v. West Virginia Oil Co. (1884), 25 W. Va. 148; McIntyre v.Sholty (1891), 139 Ill. 171; Board, etc., v. Wild (1905),37 Ind. App. 32.
The question presented in this case requires a construction of §§ 442 and 1244 Burns 1926. The construction of a statute is a judicial act. This court in State, ex rel., v. Wrigley, Judge,supra, held that where the *Page 675 action of a trial court, in granting or refusing to grant a change of venue, depended upon the decision of a controverted point of law, the error, if any, in such ruling may be corrected on appeal, but the question of law in controversy cannot be presented to this court for decision by means of a petition for a writ of mandate. It matters not how reprehensible may have been the conduct of the trial judge on this occasion, he cannot be reached by mandate. The petition ought to be dismissed.