Dial v. Olsen

BAKER, C. J. The appellant filed his complaint in the court below to restrain the levy of an execution upon his property, as well as the issuance of an alias execution under a judgment obtained in a justice of 7he peace court. We gather the following facts from the conrolaint: The appellee Olsen sued the appellant in the justice court of precinct No. 1, in Graham County, for damages. The defendant in that suit, being the appellant here, made an application for a change of venue to the justice court of precinct No. 12, which was granted. He also obtained a change of venue from the justice 295 court of precinct No. 12 to the justice court of precinct No. 10, and from there to the justice court of precinct No. 6, where this roving and travel-stained ease was finally tried, and judgment rendered against the defendant. It is this judgment which is now claimed in this suit to he void. The following paragraphs of the Revised Statutes are applicable to a change of venue in justices’ courts: “1408. The order of transfer in such cases shall state the cause of the transfer and the name of the court to which the transfer is made, and shall require the parties and witnesses to appear before such court named in the order, not less than two or more than five days after its date. 1409. When such order of transfer is made it shall be the duty of the justice who made the order immediately to make out a true and correct transcript of all the entries made on his docket in the cause and certify thereto officially, and to transmit the same, with a certified copy of the bill of costs taken from his docket and the original papers in the cause, to the justice of the peace of the precinct to which the same has been transferred.” The complaint shows that in each instance of a change of venue no transcript of the docket entries in the case was sent to the other justice, and that the defendant objected to the proceedings for that reason. These objections were overruled, but the defendant was granted another change of venue until the case was finally tried in precinct No. 6. When the case reached that court, and before pleading to the merits, the defendant appeared specially, and objected to the proceedings upon the ground that no transcript of the docket entries had been sent to the court. This objection was overruled, and the court proceeded to try the case without such transcript of docket entries, and rendered the judgment complained of in this suit. The appellee demurred to the complaint upon the ground that no cause of action was stated. The court sustained the demurrer, and, the appellant declining to amend his complaint, final judgment was rendered, and the appeal was taken. Did the court err in sustaining the demurrer? We think so. The appellant cannot complain of the defects occurring before the several justices prior to the one in precinct No. 6, for the reason that in every instance where he objected to those defects, though the objection was overruled, the case was transferred subsequently upon his motion to another justice, 296 and no judgment was given against him in such courts. But the judgment rendered by the justice in precinct No. 6 is a nullity. When a justice makes the order required by paragraph 1408 of the Revised Statutes, his jurisdiction over the case ceases, and the jurisdiction of the justice to whom the case is sent attaches by operation of law; but the latter cannot proceed to exercise that jurisdiction until the officially certified transcript of the docket entries in the ease provided for by paragraph 1409 is transmitted to him by the justice ordering the transfer. His jurisdiction lies dormant until it is vitalized by the filing of such transcript in his court. The' parties are required to see that this record is sent to the justice to whom the case is transferred, and upon failure of the justice to comply with paragraph 1409 a mandamus will command him to do so. In the moan time the justice to whom the transfer is made cannot proceed, and no substantial right of either litigant can be affected. The appellant did not waive the illegality in the proceedings by appearing specially and objecting. Laws of Ariz. 1893, p. 61. The fact that he answered and defended after his objection was overruled did not cure the illegality; than could only be waived by answering to the merits in the first instance. We are satisfied that the remedy by injunction was the appropriate one in this case. Reversed. Sloan, J., and Hawkins, J., concur.