Cupples v. Hood
1 Mo. 497
Mo.
1824
Check Treatment
Tompkins, J.,

delivered the opinion of the Court.

Hood and Oliver, defendants in error, sued the plaintiffs in error on two promissory notes, in an action of debt, in the Circuit Court of Cape Girardeau county. The Judge of that Court, without any application for such purpose, ordered a change of venue to St. Erancois county, in the third judicial circuit, alledging for reason, that one of the defendants was his son-in-law. The Judge of that Circuit sent back the papers to Cape Girardeau county, where the cause was docketed by direction of the Judge of Cape Girardeau Circuit Court. To this, the plaintiffs in error excepted. They afterwards pleaded nil debet, and, on trial, judgment was given for the defendants in error, the plaintiffs in the Circuit Court. To reverse this judgment, Cupples and Jones sued out their writ of error.

It is asigned for error, that the Court erred in docketing the cause, after it was sent back from the Circuit Court of St. Erancois county. It is the opinion of the Court, that even if the writ of error be the proper remedy in a case of this kind, the plain*352tiffs in error, by pleading in bar, have waived the advantage they might have derived from the error complained of. The proper course, it seems to this Court, would have been, to apply for a writ of prohibition, to restrain the Circuit Court of Cape Girardeau county from proceeding, after the return of the papers from St. Francois county, if the plaintiffs in error thought that Court had no jurisdiction of the cause 5 or they might have pleaded in abatement.

The judgment of the Circuit Court is affirmed»