(concurring). I concur in the judgment of reversal, because I think the trial court erred in hearing evidence as to the existence of the grounds for change of venue set forth in the petition, and in overruling the petition. But I do not concur in that part of the opinion which holds that “where the plaintiff shall have instituted suit in a county other than that of his residence, or of the county where the occurrence of which he complains took place, unless compelled to do so in order to get service on the defendant,” the change may be granted on presentation of a verified petition without supporting affidavits. I think the statute means that under such circumstances the petition must be verified, and must .also be supported by the affidavits of at least two credible persons, as provided in section 7996 of Kirby’s Digest, but that the grounds of the petition cannot be inquired into. This was what we stated in St. Louis S. W. Ry. Co. v. Furlow, 81 Ark. 496, to be the proper construction of the statute.
Section 7996 of Kirby’s Digest provides in general terms what a party shall do in order to obtain a change of venue, and it requires the supporting affidavits of at least two credible persons. Section 7381 of Sandels & Hill’s Digest, which was amended by the act of April 13, 1899, reads as follows:
“Upon presenting the petition and notice to such judge, he shall make an order for the change of the venue in such action to a county to which there is no valid objection, which in his judgment is most convenient to the parties and their witnesses.”
Now, the only change wrought in the law by the act of 1899 is to allow the grounds stated in the petition to be inquired into by the court except in cases where the plaintiff improperly institutes the action in a county other than that of his residence or where the injury complained of occurred; and it is clear to me that the Legislature did not intend to change the form or substance of the petition, or to relieve the petitioner from the necessity of presenting supporting affidavits to his petition in order to show the good faith of his .allegations that he “verily believes that he cannot obtain a fair and impartial trial of said action in the county in which the same is pending.” My opinion is that the Legislature only intended to make the petition and the supporting affidavits of credible persons conclusive as to the existence of grounds for a change of venue, where the plaintiff has instituted an action in the wrong county, the same as the law stood as to all actions before the passage of the act.
The language of the act of 1899 fully bears out my construction. It begins with a declaration that “upon presentation of the petition, which may be resisted,” etc., the court or judge shall make the order for a change if in his judgment it be necessary to obtain a fair trial. What is meant by the word “petition” as thus used? Surely not a bare petition, without supporting affidavits; for section 7996, which is neither amended nor repealed, expressly provides that the petition must be accompanied by supporting affidavits. Now, if the legislature used the words “presentation of the petition” in the beginning of this section without intending to dispense with the necessity for supporting affidavits, then it is reasonable to suppose that there was no intention, in using the words “presentation of the petition duly verified” in the concluding part of the section, to dispense with the requirement for supporting affidavits.
I think that in actions instituted in a county other than that of the plaintiff’s residence, and other than the county where the injury complained of occurred, unless compelled to do so in order to get service of summons, the act of 1899 made no change in the requirements at all, and in such cases the defendant must still, as before, present a petition duly verified by affidavit, and supported by the affidavits of at least two credible persons. The inquiry of the court is then limited to the ascertainment whether or not the supporting affiants are credible persons; and if they are found to be such, the change of venue must be granted as a matter of course.