30 Kan. 520 | Kan. | 1883
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
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 jus
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.