Concurring Opinion.
Roby, J.Hnder the decisions of the Supreme Court, I think that the legality of the order granting a change of venue is not presented, it not having been assigned as a reason for a new trial. Walker v. Heller, 73 Ind. 46; Caldwell v. Board, etc., 80 Ind. 99; Wilson v. Johnson, 145 Ind. 40; Sidener v. Davis, 87 Ind. 342; Bane v. Ward, 77 Ind. 153; Horton v. Wilson, 25 Ind. 316; Knarr v. Conaway, 53 Ind. 120; Berlin v. Oglesbee, 65 Ind. 308; Shoemaker v. Smith, 74 Ind. 71; Jones v. Rittenhouse, 87 Ind. 348; Scanlin v. Stewart, 138 Ind. 574; Wiley v. Barclay, 58 Ind. 577; Goodrich v. Stangland, 155 Ind. 279.
I do not agree with the statements in the opinion as to the sufficiency of the plea in abatement. Section 416 Bums 1901, §412 Homer 1901, is in part as follows: “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” (setting them out). This language is mandatory. It admits of no construction. The provision applies “to any civil action.” Section 417 Burns 1901 limits the preceding section as follows: “Only one *425change of venue shall he granted to the same party from the same county, and only one from the judge.” The limitation applies to any civil action; and the authorities cited in the opinion treat of attempts to procure two changes in one action. Action in the sense of the word in this statute means “the formal demand of one’s right from another person or party, made and insisted on in a court of justice.” Bouvier’s Law Diet.; §249 Burns 1901, §249 Horner 1901.
When a complaint is filed, and a summons issued thereon, a civil action is commenced. §316 Burns 1901, §314 Horner 1901. An action may he dismissed without prejudice, (1) by the plaintiff before the jury retires; or (2) when the trial is by the court, at any time before the finding of the court is announced. After dismissal the action is no longer pending for any purpose. Breese v. Allen, 12 Ind. 426. It is true, as stated, that granting or overruling an application for a change of venue is a judicial act, but it by no means follows that the right of the same party to a change of venue in another‘'action is thereby adjudicated. Overruling a demurrer to a complaint is also a judicial act, but no one would suspect that such ruling would prevent the defendant from questioning the sufficiency of the complaint' in another action between the same parties then pending, or afterwards commenced, although its allegations were identical.
The appellee began a civil action. She dismissed it, and the penalty for failing to prosecute it to a-conclusion is the payment of all costs therein made. She afterwards began another civil action and by the express terms of the statute she is entitled to one change of venue from the county therein. This was accorded her ¡by the Marion Circuit Court. The provisions allowing changes of venue are no doubt often abused. The same thing may be said of the right to institute an action. The purpose of the legislature was to enable any party to remove his cause *426from a court or county in which, he believes that he will not receive a fair and impartial trial. The courts have no power to restrict or destroy that right in any case.