Bremner v. Hallowell

13 N.W. 412, 59 Iowa 433

• Court: Supreme Court of Iowa
• Decided: October 4, 1882
• Status: Published

Opinion

Seevers, Ch. J.

We are only required to determine the questions certified to us by the circuit judge. We shall state the facts only as shown by the abstract which bear upon the single question determined. The action was commenced before justice Leedham. The defendants asked a change of venue, and the following order was thereupon made: “Change of venue is allowed and the papers and transcript sent to the next nearest justice of Center township.” No determination was made as to who was the nearest justice. The papers were handed to a constable who took them to justice Jericho who was not the next nearest justice, but not finding him at his office, the papers were taken to the office of Mayor Drayer who was not the next nearest justice to Leedham. Drayer' dismissed the case for want of jurisdiction, but granted leave-to plaintiff to withdraw the papers from file, whereupon the ¡ papers were taken and filed before justice Whitford, who was-the next nearest justice to Leedham. On application of plaintiff, Whitford granted a change of venue and ordered the papers sent to justice Jericho who rendered judgment for the plaintiff. We are asked: “ Did Jericho acquire jurisdiction of the case and have the authority to hear the same.” This question must be answered in the negative for the simple reason that Leedham never lost jurisdiction of the parties or subject-matter. When a change of venue is granted by a justice of the peace, it is his duty to send the papers to the next nearest justice. Code, § 3534. This of necessity requires the justice granting the change to designate by name who is the nearest justice. This is a judicial determination and in no other way can it be known who is the proper justice to whom the case has been transferred. Tennis v. Anderson, 55 Iowa, 625. Neither the constable nor any other person can determine who is the nearest justice. Connell v. Steeson, 33 Iowa, 147. Until Leedham determined and designated who was the nearest justice, the change of venue was not complete for the reason just stated, and that is, no one but the justice could determine such question. The cause, therefore, remained before Leedham. It is insisted the failure of the justice to designate who was the next nearest justice should not prejudice the plaintiff. But we think the parties should have seen that the required order was made which was necessary to complete the change. The proceedings before Drayer, Whitford and Jericho, are void for want of jurisdiction. It is unnecessary to determine the other questions certified.

Affirmed.