Colvin v. Six

• Decision Date: 31 October 1883
• Citation: 79 Mo. 198
• Parties: COLVIN v. SIX, Plaintiff in Error.
• Court: Missouri Supreme Court

79 Mo. 198

COLVIN

v.SIX, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1883.

Error to Johnson Circuit Court.--HON. NOAH M. GIVAN, Judge.

REVERSED.

S. P. Sparks for plaintiff in error.

J. P. Orr for defendant in error.

MARTIN, C.

A suit was instituted before a justice of the peace against one A. Colvin, upon a cause of action within the jurisdiction of the justice. Due service of summons was effected, and Colvin appeared and filed his application and affidavit for a change of venue, which were in proper form, and were based upon the prejudice of the magistrate. The application was made before trial was commenced. The justice refused to allow the change applied for, and made no order or entry to that effect, but proceeded with the trial of the cause, and rendered judgment against the defendant in the case. Upon this judgment execution was issued and placed in the hands of the defendant herein, A. D. Six. In pursuance of this execution, said Six, who was the constable of the township, levied upon two horses belonging to said A. Colvin. After the levy of the execution the plaintiff herein purchased title to the property so levied upon from said A. Colvin, the owner thereof. After such purchase he brings this suit in replevin against Six, the constable, who held the property under the execution. The court held at the trial that the judgment against Six before the justice was a nullity, and rendered judgment in favor of plaintiff in the replevin proceedings. From this judgment the defendant Six prosecutes his writ of error.

The sole question in the case is, whether a judgment rendered by a justice after due application for change of venue by defendant, is an absolute nullity, and can be treated as such in collateral proceedings. The statute declares that “either party shall be entitled to a change of venue in any civil cause,” if before the jury is sworn or the trial commenced he shall file the affidavit required by law. R. S. 1879, § 2952. It is next provided that “upon the filing of the affidavit in due time the justice must allow the change of venue and note the fact in his docket, and immediately transmit all the original papers, and a transcript of all his docket entries in the case, to the next nearest justice in the township, or if the change be allowed on account of the bias or prejudice of the inhabitants of the township, then to a justice in some other township in the county.” R. S. 1879, § 2953. This statute evidently contemplates an order of allowance of the application to be noted on the docket like any other order or judgment in the cause. Although it is his duty to make the order of allowance when the application complies with the law, I do not perceive how the case can be actually pending elsewhere until he has made the order and entered it. It is a question of jurisdiction, and it has been held by this court in construing the statute relating to change of venue from the circuit court, that it is the order of the court of a change which divests the court of jurisdiction and confers it upon another court. Henderson v. Henderson, 55 Mo. 534; State v. Daniels, 66 Mo. 192; State v. Hopper, 71 Mo. 425. It has also been held that a court which orders a change of venue retains sufficient power to set it aside during the same term. State v. Webb, 74 Mo. 333. It must follow from the principles announced in these decisions, that the court does not lose jurisdiction of the cause by the mere fact of the application for the change; and that it retains jurisdiction until the order for the change has been made. Its action in refusing an order for a...