Shannon v. Smith

• Decision Date: 13 April 1875
• Citation: 31 Mich. 451
• Court: Michigan Supreme Court
• Parties: Albert J. Shannon v. John A. Smith

31 Mich. 451

Albert J. Shannon v. John A. Smith

Supreme Court of Michigan

April 13, 1875

Heard April 9, 1875

Error to Van Buren Circuit.

Judgment affirmed, with costs.

George W. Lawton, for plaintiff in error.

Lester A. Tabor and H. F. Severens, for defendant in error.

Campbell J. Graves, Ch. J., and Cooley, J., concurred.

OPINION

Campbell, J.:

This is an action of ejectment wherein the title of the plaintiff in error depends upon a foreclosure decree granted by the circuit court for Van Buren county, in a cause begun in Cass county, and claimed to have been transferred.

The order of transfer was made by the court in Cass county, by Hon. Daniel Blackman, sitting as circuit judge. It purports to be based on an affidavit that Judge Blackman "was formerly of counsel for the complainants in the above entitled cause, and for that reason is unable to act as judge in said cause."

The order was as follows, after the usual introduction: "it is ordered that the register of this court transmit all the files and papers, copies of orders in said cause, to register in chancery in Van Buren county, in said state of Michigan."

The policy of this state does not favor the action of judges in cases where they have been counsel, but we have no statute which takes away the jurisdiction of any court because of the incapacity of its judges to sit in given cases. Every case must remain in the court where it originated, until removed by lawful authority. And we have found no grounds for the assertion that any court has a general and inherent power to remove from itself to another court any cause pending in it. That power can only be given by statute, and the statute must be complied with.

The change of venue at common law did not remove the record, but only changed the place of trial. Under our statutes and constitution, the local tribunals are all separate and independent, and special and broad provisions have been made suitable to our own system, and required by the change from a system of nisi prius. No necessity has existed for changes of place in the hearing of equity cases generally, because they are not tried like jury causes, and circuit courts may be held by any judge who may be requested, as well as by the judge of the circuit where the court is held. No transfer has been provided for except under peculiar circumstances.

One of these is the disqualification of the judge by reason of his having been connected with the controversy as counsel. Proceedings in such cases are...