Van Dyke v. Battle , 1 Stew. 218 ( 1827 )

JUDGE CRENSHAW

delivered the opinion of the * Court.

In the Circuit Court of Dallas county. Van Dyke -brought an action of trespass against Battle, Hatcher and Rives. On the application of Battle, the Court ordeied the venue as to him only, to be changed to Autauga county, and a transcript of the record to be certified (o the Circuit Court of Autauga. This Court being of opinion that the cause could not be tried on a mere transcript, ordered a certiorari to the clerk of Dallas, requiring him to send the original papers. Van Dyke now petitions for process from this Court, to restrain the clerk from sending the original papers from Dallas Circuit Court, where the cause is yet pending against Hatcher and Rives.

Beene, for petitioner.

In a civil action the venue cannot be changed as to one defendant and not as to all. The Circuit Court of Dallas erred in ordering a change of venue as to Battle alone. The Circuit Court of Autauga was right in refusing to try the case on the transcript, but wrong in ordering the certiorari, for the case was not properly in the Court of Autauga. We are of opinion that the order changing the venue is void, and that by the proper writ from this Court, the certiorari and the order therefor be superseded.