People ex rel. Neierman v. Gibbons , 91 Ill. App. 567 ( 1900 )

Mr. Justice Horton

delivered the opinion of the court.

“ The better opinion seems to be that mandamus will not lie to compel the setting aside of a change of venue.” 13 Enc. Plead. & Prac. 549.

This is certainly the better rule where'the provisions for an appeal are so complete and generous as in this State.

But the affirmance of the judgment of the Superior Court does not necessarily rest upon that ground. The amended petition shows, among other things, that upon the application of the relators, Justice of the Peace Walter J. Gibbons granted a change of venue in each of the fifteen cases mentioned to Charles H. Hoglund, Justice of the Peace, and that when the “ said fifteen cases reached the said Hoglund, Justice of the Peace, the attorney of your petitioners renewed before him their motion for a change of venue in all of the said fifteen cases to a disinterested justice of the peace.”

It does not appear that any affidavits were filed with said Hoglund in support of the motion requesting him to change the venue of said cases, nor that the affidavits filed with said Gibbons were read to said Hoglund, or called to his attention.

The prayer of said petition is that the court “ grant a mandamus compelling the said Charles H. Hoglund to transmit the above mentioned fifteen replevin cases back to the said Walter J. Gibbons, Justice of the Peace, and compelling the said Walter J. Gibbons, Justice of the Peace, to change the venue in all of the fifteen cases to a disinterested justice of the peace, who is not objected to on the ground of prejudice or interest in the said suits, in conformity with the statute in such cases made and provided.”

A court of superior jurisdiction can not properly issue a writ of mandamus to compel an inferior court to do a thing which such inferior court has never been asked to do. If the demurrer to the amended petition had been overruled and a writ ordered, such writ must have directed said Hoglund, Justice of the Peace, to “ transmit ” said replevin cases “ back to the said Justice Walter J. Gibbons, Justice of the Peace.” But said Hoglund, Justice of the Peace, had never been requested to do that. The only motion made before him was “ for a change of venue in all of the said fifteen cases.”

Such a writ must also have commanded said Walter J. Gibbons, Justice of the Peace, to change the venue in all of said cases; but said Gibbons, Justice of the Peace, had no jurisdiction in said suits when said petition was filed. The venue had been changed and the cases transmitted to Hoglund, Justice of the Peace.

A change of venue is a statutory right. There is no provision of the statute authorizing a second change of venue in the same case. Said Hoglund had no authority or right to change the venue in the cases which had come to him by change of venue from said Gibbons. The error, if any, was by Gibbons, Justice of the Peace, in sending said cases to Hoglund, Justice of the Peace. But such an error can not be reviewed or corrected by mandamus proceedings.

Said Gibbons granted a change of venue upon the motion and affidavit of the relators. Had he declined to grant such a change, it may be, perhaps, that mandamus would lie to compel him to grant it. But the complaint of the relators is that he did not grant such change in a particular manner. That can be reviewed only upon an appeal. The judgment of the Superior Court is affirmed.