On Petition for a Rehearing.
Howk, J.— In this case a rehearing is asked, not for any error in the points decided in the original opinion, but the appellee’s counsel claim, in their petition, that we omitted to consider and pass upon a point which ought to have been decided. Without conceding that we were at fault in this respect, we have concluded to consider and decide the omitted point.
*495As stated in the original opinion, the appellant’s application for a change of venue from the county was made, under the provisions of the third clause of section 207 of the civil code of 1852, as amended by an act approved March 5th, 1877. This clause of the section, as amended, reads as follows:
“ Third. That the opposite party has an undue influence over the citizens of the county, or that án odium attaches to the applicant, or to his causé of action or defence, in [on] account of local prejudice, in either of which cases, in this third subdivision, provided such applicant shall further show by his affidavit that he has a good and meritorious cause of action or defence, which shall be specifically set forth therein.” Acts of 1877, Reg. Sess., p. 103.
It is proper that we should notice, in this connection, that in section 255 of the civil code of 1881, which specifies the causes for which the venue of a civil action shall be changed, and which substantially re-enacts section 207 of the code of 1852, the third clause now provides as follows: “ 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 defence, on account of local prejudice.” This section 255 is section 412 of R. S. 1881. This third clause now reads precisely as it did in the code of 1852, as originally enacted, and as it did in the act of March 5th, 1859, amending sections 207 and 208 of the code of 1852; and so the law remained until section 207, as amended, was again amended by the above mentioned act of March 5th, 1877. We have set out, at length, the third clause of said 207th section, as amended by the act of March 5th, 1877, and it will be seen therefrom that the amendment of the third clause consisted in adding to such clause, as it had previously read, the following proviso : “ Provided such applicant shall further show by his affidavit that he has a good and meritorious cause of action or defence, which shall be specifically set forth therein.”
We come now to the consideration of the only point made *496by the appellant’s counsel, in their petition and argument for a rehearing, namely: that the affidavit for the change of venue was insufficient, because it was not shown thereby that the appellant had a good and meritorious cause of action, which was specifically stated therein. "We do not think that this point is well taken, or can be maintained by a fair and reasonable construction of the language of the statute. We set out so much of the affidavit for a change of venue as relates to the point under consideration, as follows: “The plaintiff has a good and meritorious cause of action, consisting of a claim for a stock of goods, of which he is and was the rightful .owner, and which was seized by the defendant without right.’” As stated in the original opinion, the appellant filed a verified complaint, in this case, which was an action of replevin. The complaint subserved the double purpose of a statement of the cause of action, and of the requisite affidavit to entitle the appellant to a writ for the possession of the stock of goods; and it was so manifestly good, for both purposes, that the appellee did not test its sufficiency in any manner, or in either respect.
It seems to us, that the showing in the affidavit for the change of venue, that the appellant had a good and meritorious cause of action, in that he was the rightful owner of the stock of goods, which the appellee had seized without right, was sufficiently specific to comply substantially with the requirements of the statute. Certainly, it was not intended by the law-making power that the good and meritorious cause of action should be stated so specifically in the affidavit for a change of venue, that it would withstand a demurrer thereto for the want of facts. For, if the Legislature had intended that such a showing should be made, the statute would have required that the plaintiff should make his complaint a part of his affidavit for a change of venue. All that the statute contemplated, as we construe its provisions, was, that the affidavit should show the nature and substance of the plaintiff’s cause of action, so that it would appear to be good and *497meritorious; and such was the showing made by the affidavit in the case at bar, and we think it was clearly sufficient.
The petition for a rehearing is overruled, at the appellee’s costs.