49 Miss. 506 | Miss. | 1873
delivered the opinion of the court»
Ejectment for the possession of lands in the county of Sunflower. The action was commenced and issue joined in that county, but was subsequently transferred to and tried in tbe county of Yazoo. The transfer is shown in the record .by the following entry in the cause, while it remained in the county of Sunflower»-
“ By the consent of the parties, it is ordered by the court,
The right of the circuit court of Yazoo county to hear and determine this case, is now, for the first time, presented for consideration. The other questions raised on the trial appear to have been properly disposed of, and need not be discussed. With reference to the change of venue, the Code, § 722, following prior statutes, enacts, that, “ No civil suit shall be removed more than once, or in any other manner than that prescribed in this act.” The sum of the argument is this: It will be conceded, that no civil suit can be removed more than once. Consent cannot authorize a second removal, because the statute is prohibitory. But, the statute ■is equally absolute and peremptory, that a change of venue can only take place in the mode thereby prescribed. That mode is declared in § 719 of the Code, and is by-petition, under oath, addressed to the. court, or to the judge of the district in vacation, setting forth the reasons for the application, the ground for the change being, “ that from the undue influence of the adverse party, prejudice existing in the public mind, or for Some other sufficient cause, to be described in said petition,” the party “ could not 'obtain a fair and impartial trial in the county where the action may be' pending.” Code of 1857, p. 496, art. 122. The change of Venue, therefore, in the case at bar, was in utter disregard of the statute, and must be held to be void. 3 S. & M., 629. There is no inherent power in the circuit court over this subject beyond that conferred by statute, which must at least be substantially pursued. In this instance the change Was in violation of the positive words of prohibition.
We have inherited from the common law, the rule, that actions of ejectment and trespass, guara clausum fregit, are local, and hence the following very specific statute: “All civil actions shall be commenced in the circuit court of the county In which the defendants, or any of them, may be
Hence, the circuit court of Yazoo county could acquire jurisdiction of the subject matter of the litigation only in the mode pointed out by statute. Consent could not confer it. The question of jurisdiction, and when it may be waived, and when it may be raised, will be fouud fully discussed in the following'cases: 10 S. & M., 159; 3 ib., 529; 4 ib., 538; ib., 549 ; 5 ib., 559; 12 ib., 449; 41 Miss., 688.
Yenue can only be changed upon cause shown. The statute is positive and prohibitory. For the restrictions and limitations of the enactments there are reasons founded in wisdom and justice. Abuses are known to have existed in an open and undefined practice as to venue in England, detrimental to defendants and to the cause of justice, resulting in reforms. Like abuses crept into our own early practice, causing the most carefully prepared statutes, and would arise again to the serious annoyance of suitors, were any discretion confided to the courts or to parties, over this subject. The views now expressed are sustained by the authorities. Tidds’ Pr.
The judgment is reversed; cause remanded to the county of Sunflower; and venire de novo awarded.
