79 Mo. 198 | Mo. | 1883
A suit was instituted before a justice of the peace against oue 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 pi’oper 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 éntry 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 ei'ror.
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 near
Our attention has been called to some decisions of this court construing the acts of congress relating to the removal of causes to the courts, of the United States. Herryford v. Ætna Ins. Co., 42 Mo. 148; Beery v. Railroad Co., 64 Mo. 533. There are expressions in these opinions which would seem to indicate that the court in which the application