UNITED STATES SUPREME COURT DECISIONS ON-LINE

The judgment of a state court reversing the judgment of an inferior court on account of its refusal to change the venue of the action and remanding the case for further proceedings is not a final judgment to which a writ of error will lie.

This was an action of tort instituted by Snell in the Court of Common Pleas of Hamilton County, Ohio, against the Street Railway Company, to recover damages for personal injuries alleged to have been caused by its negligence.

On November 27, 1896, plaintiff Snell made a motion for a change of venue, and in support thereof filed his own affidavit as well as the affidavits of five other persons, in compliance with the following section of the Revised Statutes of Ohio: clubjuris

Page 179 U. S. 396

"SEC. 5033. When a corporation having more than fifty stockholders is a party in an action pending in a county in which the corporation keeps its principal office, or transacts its principal business, if the opposite party make affidavit that he cannot, as he believes, have a fair and impartial trial in that county, and his application is sustained by the several affidavits of five credible persons residing in such county, the court shall change the venue to the adjoining county most convenient for both parties."

This motion was overruled and an exception taken on January 28, 1897. A bill of exceptions was allowed and filed showing what had occurred upon the motion so overruled.

The case came on for trial before a jury, and resulted in a verdict in favor of the railway company. Motion for a new trial was made and overruled, and judgment entered for the defendant upon the verdict.

After this judgment upon the merits, proceedings in error were begun and prosecuted in the state circuit court, sitting in Hamilton County, to reverse the judgment by reason of the refusal of the court of common pleas to change the venue under the section of the statute above quoted. By leave of the circuit court, the railway company filed an amendment to its answer, wherein it alleged, among other things, that section 5033 was in conflict with the Fourteenth Amendment to the Constitution of the United States. The judgment of the court of common pleas was affirmed by the circuit court, July 18, 1898, whereupon Snell began a proceeding in the supreme court of the state to reverse the judgment of the circuit court, the only error assigned being to the judgment of the circuit court, affirming the judgment of the court of common pleas denying a change of venue.

On May 9, 1899, the Supreme Court of Ohio rendered the following judgment:

"On consideration whereof, it is ordered and adjudged by this court that the judgment of the state circuit court be, and the same is hereby, reversed, with costs, and proceeding to render the judgment which the court should have rendered, it is considered and adjudged that the judgment of the court of common pleas be, and the same is hereby, reversed,

Page 179 U. S. 397

with costs, for error in overruling the motion of the plaintiff for a change of venue. It is further considered and adjudged that the plaintiff in error recover of defendant in error his costs in this court and in the circuit court expended, to be taxed, and that the case be remanded to the court of common pleas, with directions to grant the change of venue, and for further proceedings according to law."

60 Ohio St. 256.