general denial, but motion. It is to be observed that the demurrer is not the proper mode of taking advantage of a defective general denial, either in answer to a complaint, or in reply to an answer. If there is any material objection to either, the remedy is either by motion to reject the pleading, or for judgment over it. But these defects are so rare on account of the simplicity of this pleading that little need be said upon the subject. $43. Argumentative denial will be rejected on motion. Both in answers and in replies, a prevalent fault is, to set up matter specially, which is but an argumentative denial; in either case such a pleading will be held good on demurer,1 but will be rejected on motion. Hence such a motion is proper to be made before a demurrer is filed. 844. Plaintiff may let judgment go on demurrer to reply. If the demurrer to the reply be overruled, and the defendant knows that the facts stated are true, and that the plaintiff is able to prove them, he may have his exception noted and stand by his demurrer, and let judgment go for the plaintiff, or he may note his exception, say nothing further, and let the case be tried, and still avail himself of the errror in the ruling on the demurrer, if there be any, on appeal. $45. Reply held good or demurrer to it waived, issue complete. The demurrer to the reply, being the last step in the series, having been disposed of or waived, the case is at issue; and if the defendant desire to controvert the allegations in a special reply, or paragraph of a reply, where there is more than one, he may do so without any rejoinder, and his proof may likewise be controverted by the plaintiff's proof as has been seen without any written surrejoinder. But with the disposition or waiver of the demurrer to the reply, the issues are closed, and the case is ready for trial, where the parties respectively elect not to dispose of the case upon demurrer, in some one of the modes pointed out. If a demurrer to the reply be not filed, the defendant will be deemed to Austin v. Swank, 9 Ind. 109; Co. v. Toffe, 11 Ind. 458; Campbell v. French v. Howard, 14 id. 455. Swasey, 12 id. 70; Westcott v. Brown, 'Ante, ch. IV, § 6; I. &. C. R. R. 13 id. 83. accept the same as sufficient, and to have waived a demurrer, without any entry or order. § 46. When amendments to pleadings must be made. As has been several times intimated, either party may amend his pleading at any time before the other party has demurred, answered or replied. And by leave of court, any pleading may be amended at any time before the trial.1 But as the certainty of the practice renders some restrictions upon the right to obtain leave necessary, it is usual to require by rule or usage of court, all amendments to be made before the day on which the case stands for trial; nor is it usual to allow amendments to the complaint or answer after the issues are once closed. But the whole subject being left so far in the discretion of the court trying the cause, he may allow an amendment of a material character, even upon the trial, subject to the right of the opposite party to postpone or continue the case upon affidavit of the adverse party, at the cost of the amending party. This is a great innovation upon the common law rules of practice, but as equity cases, as well as cases at law, are the subject of trial alike under the code, this part of the equity practice is adopted by the courts under the broad discretion conferred upon them. The settled rule as to amendments after the issues are closed, either before or upon the trial, seems to be about this: where it is proposed to introduce a new cause of action or defense, or a new issue, it can only be done by motion on affidavit showing some valid cause for the delay to make the amendment. When such an amendment is allowed and the opposite party does not by motion, supported by affidavit, ask for delay to complete the issue, when rendered necessary by such amendment, or to prepare for trial, the presumption is that no injury was caused by the amendment and no available error is committed, but if an application for delay is made and overruled, it is error and may be successfully assigned as such, in the supreme court.3 12 R. S. (1876) 81, § 97. Burr v. Mendenhall, 49 Ind. 496. " Id. §§ 97-8. CHAPTER V. OF THE CHANGE O 1. Of the setting down of causes for trial. 2. When change of venue may be taken. 3. Causes for a change from the judge. 4. Change of venue from the county. 5. Made of granting change of venue. 6. Before whom case tried on change of venue. 7. Appointment and oath of special judge. 8. Change of venue from the county when perfected. 9. Change of venue how perfected. 10. Changes of venue rare in certain cases. 11. Each party may have one change of venue. 12. Objection to special judge. 13. When a case set for trial before a special judge is not tried, the consequence. 14. Change of venue from the county when the case stands for trial. 15. Change not perfected, the consequence. §1. Of the setting down of causes for trial. Previously to the commencement of the term of the courts, the clerk sets down upon the docket for trial, a sufficient number of causes on each day, to keep the court engaged; so that each cause has a day fixed for its trial. Time is given before the commencement of the call of the trial docket, to dispose of motions and demurrers and complete the issues, so as to begin with the call of the docket for trials, on the first trial day, and if in any case the issues are not completed before the call for trial begins, the motion hour, being the first hour after the session begins, is usually devoted to motions and demurrers, so that the issues are kept completed ahead of the call for trial; but if, through the negligence of the attorneys or other cause, the trial day comes before the issues are completed, the cause loses its place upon the trial docket, and goes to the foot of the docket. §2. When change of venue may be taken.. Before the cause is reached in the call for trial, or rather at any time before the day on which it is set for trial, either party may apply for a change of venue from the judge or from the county. $3. Causes for a change from the judge. The change from from the judge may be had, 1. Where it appears that previously to the commencement of his term of office, the judge has been of counsel for one of the parties; or, 2. Where he is of kin to one of the parties or interested in the event of the suit;, or 3. Where the judge is a material witness; or, 4. Where either party shall make and file an affidavit of the prejudice or interest of the judge of the court in which the suit is pending, and before whom the same stands for trial.1 §4. Change of venue from the county. In order to obtain a change of venue from the county, the party applying must make and file an affidavit, 1. That the opposite party has an undue influence over the citizens of the county; or, 2. That an odium attaches to the applicant, or his cause of action, or defense, on account of local prejudice; or, 3. That the county is a party; or, 4. That the convenience of witnesses and the ends of justice would be promoted by a change of venue. In addition to the affidavit of the exigency necessary to justify a change of venue from the county, where it is based upon undue influence of the opposite party, odium or local prejudice, the affidavit must now state that the applicant has a good and meritorious cause of action or defense, which must be specifically set forth therein.3 § 5. Mode of granting change of venue. These motions, if made in time and due form, are motions of course, the court having no discretion; and if such a motion is refused, it is error, and may, being saved by a proper bill of exceptions, be taken advantage of on appeal. Applications for change of venue, either from the county or judge, may be made, and a change ordered in the action, in vacation, ten days' notice being given to the adverse party. If the application be granted on account of the objection 12 R. S. (1876) 116, § 207. 22 R. S. (1876) 118, § 207. Acts 1877, 103. Witter v. Taylor, 7 Ind. 110; Shaw v. Hamilton, 10 id. 182; Shattuck v. Meyers, 13 id. 46. to the judge, the court may select a judge of the supreme court, the judge of any other circuit court or criminal circuit court, or judge of a superior court, in a county where there is a superior court, and set the case down before him; or if this is not practicable, the court must select three practicing lawyers, resident in another county, and the attorney for the plaintiff must strike off one of the names, and the attorney for the defendant, another, and the lawyer, whose name is not stricken off, is notified, and the case set down for trial before him.1 §6. Before whom case tried on change of venue. In cases of this sort, the court may either let the cause be tried by a special jndge, at the term at which the application is made, or at a time to be fixed within not less than sixty days. Or the cause may be tried by agreement of the parties, before any practicing attorney as special judge, at a time to be fixed by the court, or agreed upon. $7. Appointment and oath of special judge. Where a case is tried by a special judge, and he be not a commissioned judge, his appointment must be in writing, and he must take an oath and have both spread upon the record. $8. Change of venue from the county when perfected. Where a change of venue from the county is taken, the court usually fixes the time of perfecting the same, and the change must be perfected within the time, and cannot be done afterwards. And if the court fixes the time within which the change is to be perfected, or if it be not perfected within ten days from the next term of the court to which the case is taken, where it is taken a sufficient length of time before the term of court to which the change is taken, the change is waived, and the case stands for trial at the next term, as if no change had been taken. And if the papers have been sent up by the clerk after the time fixed has elapsed, the cause will be remanded on motion in the court in which they have been filed, or ordered back by the court from which they were sent, upon a like motion. $9. Change of venue, how perfected. The mode of perfecting the change is, by the clerk's making a transcript of the orders Acts 1875, p. 116; 2 R. S. (1876) 120, § 1; 22 R. S. (1876) 119, § 208. |