The opinion
On Petition for a Rehearing.
Franklin, C.
Appellant, in his petition for a- rehearing, insists that in the original opinion in this case a wrong construction has been placed upon his application for a change of venue from the trial judge; that the reasons stated in his affidavit were not intended as reasons for making the affidavit, but as reasons for not having made it sooner and within the rule of court.
The cause was set for trial on a certain Monday. On the Friday before the court liad made a ruling on a preliminary legal question against appellant. There was a rule of court that applications for changes of venue should bo made “on or before the judicial day immediately preceding the day the cause is docketed for trial, except upon a sufficient showing of facts verified by affidavit.” For the purpose of having the question fairly understood, we copy the entire affidavits upon which the application was made, and they read as follows :
“ Now, at this time, comes Ezra G. Hays, the defendant in this case, who, being duly sworn, on his oath says, that he believes ho can not have a fair and impartial trial of this cause before tbe Honorable Omar F. Roberts, judge of said court, *237 on account of the bias and prejudice of said judge against this defendant in this cause.
“ He further says he did not discover the cause for ■which he asks this change of venue until Saturday, the 10th day of May, 1879, after the opinion of the court was rendered granting a rule in said cause why certain papers should not be placed on the files of this court, and the 9th day of May was the last day on which said court was in session until the date of this affidavit; and said court not being in session on the 10th day of May, 1879, and not until the filing of this affidavit; and this is the first opportunity of filing this affidavit since the discovery of said cause of change of venue, and he files this affidavit as early as possible after said discovery of cause of change. And when said opinion was delivered late on the 9th day of May, 1879, this affiant was not in court in person, and did not have full information concerning it until said 10th day of May. Ezra G. Hays.”
The following is the affidavit of his attorney in support thereof:
“ Now, at this time, comes Oliver B. Liddell, who, being duly sworn, on his oath says, he is one of the defendant’s attorneys in this cause, and that at the time the opinion of the court was rendered in this cause, granting an order against defendant to show cause why a certain paper should not be placed on the files of this court in this cause, which opinion was rendered on the 9th day of May, 1879, the defendant was not present in court, nor was he informed of the ruling of said court in this cause concerning said matter until Saturday, the 10th day of May, 1879, when he was so informed by this affiant. And he further says, that after said information was given to said defendant, this, the 12th day of May, was the first opportunity presented for the filing of his motion and affidavit for a change of venue from the judge of this court, the court not being in session on the 10th day of May, and the 11th day of May being Sunday, as affiant verily believes and further says not. Oliver B. Liddell.”
*238 In the opinion it was held that the reasons given for the making of the motion so limit and qualify the charges of bias and prejudice as to render the application insufficient. From the affidavits we are led to infer, and we think it very evident, that if the specified ruling had not been made against the defendant, there would have been no motion made for a change of venue from the judge. The specifying of one reason excludes all others, and the mere ruling of the judge upon a legal question against a party, which is presumed to be right,, nothing to the contrary appearing, can not be a sufficient cause for charging bias and prejudice, and thereby procure a change of venue from the judge.
We think the opinion heretofore rendered in this case places the right construction upon the application for a change of venue from the trial judge, and as this is the only question presented by appellant in his brief upon his petition for are-hearing, it ought to be overruled.
Per Curiam.
The petition for a rehearing is overruled, at appellant’s costs.