23 Ala. 25 | Ala. | 1853
The only question presented for our consideration is, does the order made by the Circuit Court of Talladega County, as shown by the record, amount to a change of venue, in the case mentioned in it, to the county of St. Clair ? If it does not, then it is clear the Circuit Court of the latter county has no jurisdiction of the case, and should have stricken it from the docket on the motion of the counsel for the defendant.
The order of the Circuit Court of Talladega, made on motion of the plaintiff, directs, in general terms, that the venue be changed, but designates no county in which it shall be tried on
We apprehend that an order for a change of venue is never complete until the particular county in which the subsequent proceedings are to be had is expressly named in it. An order of the court that a cause be transferred to one of two counties, without designating which, would be too uncertain to be acted upon, and might often lead to confusion. Under such an order, one party might prepare himself for trial in one of the counties named, and his adversary in the other, or it would be left to the clerk to send the record to which of them he pleased, and thereby exercise a power and discretion which belong alone to the judge. Such an order would be void for uncertainty.
The order in this case is more imperfect and uncertain than the one in the case supposed, for it does not direct that the case be sent either to Benton or St. Clair County. It merely recites, that the parties have consented that the plaintiff shall have the right to elect to which of these counties the case shall be carried, without showing that he ever made such election, or that the court ever acted in the matter after the election was made, so as to give authority to the clerk to send the papers and record to the county designated, and invest the court of that county with the jurisdiction to try the cause.
Our opinion is, that until the plaintiff had made his election between the counties named in the agreement of the parties, and the court had acted upon the election so made by ordering the papers and records to be transmitted by the clerk to the Circuit Court of the county so chosen, the order was incomplete, and no change of jurisdiction had taken place, without which no other court can proceed in the cause.
We think the court below should have stricken the case-from the docket.
Let a rule issue to the judge presiding in the third judicial circuit in this State for the county of St. Clair, requiring him to show cause why a writ of mandamus shall not issue on the application of said David II. Remson, in the case named in the record.