Doniphan v. Transue
| Decision Date | 29 November 1920 |
| Docket Number | No. 13734.,13734. |
| Citation | 226 S.W. 635 |
| Parties | DONIPHAM v. TRANSUE. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Clay County; Ralph Hughes, Judge.
"Not to be officially published."
Suit by C. A. Doniphan against George W. Transue. From judgment for plaintiff, defendant appeals. Affirmed.
James S. Simrall, of Liberty, and F. B. Ellis, of Plattsburg, for appellant.
Daniel H. Frost, of Plattsburg, for respondent.
This suit, originating the Clinton circuit court, is on a grocery account amounting to $63.63. Plaintiff recovered the amount of his bill, and defendant has appealed.
Prior to the institution of this suit plaintiff brought suit on the same account before Justice Brown in Clinton county, and secured judgment, but, owing to a defect in the proceedings, enforcement of the judgment by execution was stopped by an injunction in the circuit court. The suit was refiled before the same justice. The injunction in the circuit court was settled by a dismissal of the same, the waiving by defendant in that suit, plaintiff here, of all right of action on the injunction bond, and by each party paying his own costs. It was the understanding of the attorney for the defendant here, plaintiff there, that this settled all matters of difference between the parties, but that was not the understanding of the defendant there, plaintiff here. The defendant fled in the second suit before the justice an application for a change of venue. The plaintiff attempted to dismiss that suit in the justice court intending to bring this suit. The justice made the following entry in his docket:
The justice did not designate the justice to whom the cause was to go, and, of course, did not transfer the papers on the day he made the foregoing entry. Thereafter ho made the following entry:
Defendant in the present suit pleaded the pendency of the prior suit in the justice court. The plaintiff thereupon dismissed the suit pending before Justice Hartell without the knowledge or consent of defendant.
It is insisted that the affidavit for a change of venue filed before Justice Brown deprived him of jurisdiction, and he, not having sent the cause to Justice Hartell at the time of the filing of the affidavit, could not thereafter transfer the same to Justice Hartell by an amendment of his docket. The statute (section 7482, R. S. 1909) provides:
"* * * That when such affidavit for a change of venue shall be filed, the justice shall have no further jurisdiction in the cause, except to grant such change of venue."
Therefore it is apparent that the attempt of Justice Brown to dismiss the cause after the affidavit was filed was of no force and effect. The same section of the statute provides that upon the filing of the affidavit for change of venue "the justice shall 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 some convenient justice in the township."
It is apparent that Justice Brown did not comply with the statute when he made the first entry shown supra. While the entry recites that the change of venue was granted, it did not specify to what justice the cause should go. While Justice Brown lost all jurisdiction of the cause except for the purpose of transferring the same, he had not complied with the statute and had not completed the granting of the change of venue until he had transferred it to some other justice, for which purpose he retained jurisdiction. The case was therefore properly transferred. Any other construction of the statute would defeat its purposes and result in a holding that the cause was suspended in mid-air without the possibility of jurisdiction being vested...
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