Barnhart & Brother v. Davis , 30 Kan. 520 ( 1883 )

The opinion of the court was delivered by

Horton, C. J.:

The error complained of is the judgment of the district court sustaining a demurrer to the plaintiffs’ petition. The question arising thereon is, whether upon the filing of the affidavit and confessing judgment for costs, as provided for in art. 7, ch. 81, Comp. Laws of 1879, the jusT tice was ousted of all jurisdiction .in the case pending before him of Catharine E. Davis against the plaintiffs, for restitution of the steam flouring mill described in the petition. The contention is, on the part of the .plaintiffs, that after they had filed their affidavit for a change of place of the trial of the case, and had confessed judgment for costs before the justice, that the justice was not only bound to change the place of trial, but that all of his subsequent acts were mere nullities, and that the judgment subsequently rendered was void.

With this view, we cannot concur. In Herbert v. Beathard, 26 Kas. 746, we decided, “ if the application for a change of the place of trial is sufficient, the justice must grant the change, but if the application is not sufficient, he must refuse it.”

Of course, within this decision, upon proper application and action, a change of the trial should be granted from the justice to whom the application is made, to some other justice; but we have not decided, and are not willing to decide that, upon the filing of a sufficient affidavit and confessing judgment for the costs before the justice, as required by the statute, the justice loses jurisdiction of the cause. If the application, when properly made, is overruled, the ruling is merely erroneous, and the judgment subsequently rendered is not a nullity or void for want of jurisdiction. (City of Ottumwa v. Schaub, 52 Iowa, 515; Swan v. Bournes, 47 id. 581.)

The statute concerning the change of the place of the trial from a justice, is not exactly similar to the law of congress providing for the removal of cases from state to federal courts. Under that law, as construed by the United States supreme court, when a sufficient cause for a removal is made in the state court, the rightful jurisdiction of that court comes to an end, and it becomes the duty of the state court to “proceed no further.” The state court has no power to refuse the removal, and can do nothing to affect the right, and its rightful jurisdiction ceases eo instanti. No order for the removal is necessary, and the state court has no discretion as to what judge or court it will send the cause. If the state court goes on to adjudicate the case after the removal is made,, such action on its part is usurpation, and the fact that such party has, after the removal, contested the suit, does not, after judgment against him, constitute a waiver on his part of the question of the jurisdiction of- the state court to try the case. (Dillon on Removal of Causes, §75; Railroad Company v. Koontz, 104 U. S. 5; Kern v. Huidekoper, 103 id. 485; Removal Cases, 100 id. 457.)

Section 76, chapter 81, Compiled Laws of 1879, reads:

“If the place of the trial be changed on account of the bias or prejudice of the justice, or of his being a material witness in the cause, such cause shall be transferred for trial before some other justice of the peace of the same township, if there be one there legally competent to' try such cause; if there be no such justice within such township, or if such change be granted on account of the bias or prejudice of the citizens of such township against such party, the case shall be taken to some justice in an adjoining township of the same county.”

Section 77 reads:

“The justice granting such change shall deliver or transmit the papers in the cause, together with a certified transcript of the proceedings before him, to the justice to whom such change may be granted, who shall proceed therein, and have the same jurisdiction, powers, and duties, in all respects whatever, as if such suit had been originally instituted before him.”

"While the granting of a change of venue by the justice of the peace is purely a ministerial act, nevertheless, under the sections quoted, the justice may, in'some cases, exercise judicial discretion by determining the question as to what justice he will send the case. .There may be two or more justices of the peace in the same township, and the justice before whom the action is commenced may select any one of them who is legally competent to try the case. If there is no justice within the township competent to try the case, then the justice granting the change of place of the trial has the choice of the trial justice in the adjoining township of the same county. The jurisdiction of the justice to whom the change of trial is granted does not attach until the cause is transferred for trial, the justice selected to try the case, and a 'certified transcript of the proceedings delivered to him. ■.

The other questions presented are not important, as they do not affect the jurisdiction of the justice trying the cause. As the defendants were acting under the authority of the judgment, which was not a nullity or void, in obtaining the restitution of the mill in controversy, the district court did not err in its ruling.

The judgment of the district court will be affirmed.

All the Justices concurring.