Saunders v. Morse , 4 Miss. 101 ( 1838 )

Mr. Justice Pray

delivered the opinion of the court.

Among the errors assigned, the only one which we deem necessary to examine is the following:

The circuit court of tire county of Claiborne took cognisance of this case upon a pretended change of venue, and gave judgment for the plaintiffs below; when by the law of the land the cause should have been stricken from the docket, or sent back to the county where alone the cause was cognisable.

On examining this record we find that the suit was instituted in the circuit court of the county of Warren, where the cause was put at issue. After the.pleadings are completed this entry is made by the clerk: “ And the venue in this case is now changed from Warren county to the county of Claiborne.”

In the Rev. Code, p. 188, sect. 9, it is provided, “that the judge awarding a change of venue according to this act, shall, if in vacation issue an order under his hand and seal, to the clerk of the circuit court wherein the suit may be depending, to transmit the papers belonging to and filed in the cause, to the clerk of the court to which the venue shall be changed, which order shall be returned with the petition and filed with the other papers in the suit.”

There is nothing in the record and papers in this cause which indicates that the change of venue was made in vacation. We come to the conclusion then that if a change was made it was made in term time.

It is believed that courts of record can only manifest their orders, judgments and decrees by their record. That an order of the court, for the change of venue, on an application in term time addressed to it, is necessary, we regard as self evident. In this case there is no such order in the record or other papers in the cause. We conclude, therefore, that there was none. And without such order the circuit court of Claiborne could take no jurisdiction of the cause. The statement of the clerk is insufficient; nothing can supply the want of the order. As well might this court take jurisdiction of a case in which the clerk of the court below should state in the record, “ that a bond in due form had been executed and filed in his office authorising the award of a writ of error; and that the writ had been issued according to the forms of law.”

A case thus circumstanced we should dismiss for want of jurisdiction, without hesitation; and we think the circuit court of the comity of Claiborne had as little foundation for proceeding to judgment in the cause under consideration.

The judgment of the court below must, therefore, be reversed, and the cause stricken from the docket, with costs.