Ex parte Holton

STONE, J. Whén a change of venue is obtained in a civil cause, the statute, Code of 1876, §3119, declares that “the clerk or messenger is entitled to five cents per. mile, and tolls and ferriages, going and returning, which must be paid in advance by the party applying for the change of venue.” The plain import of.this statute is, that the clerk shall not be required to transmit the transcript and original papers, 'for which § 3118 makes provision, unless such prepayment of- fees for the messenger be first made. The section of' the Code above copied has a further provision, as follows; “ If paid [the messen^ ger’s fees] by the opposing party, to be taxed in the bill of costs against his adversary.” Under this clause it is contended that the party applying for the change of venue was not required to make this prepayment, until demand was made upon him therefor. We think it had a different purpose. When a change of venue is regularly granted, the effect is to discontinue the suit in the court in which it was brought. . It passes out of the jurisdiction, and off the docket of that court. If not transferred to the other court, and docketed there, it ceases to have a place in any court. Now, cases may arise, in which the party obtaining the change of venue may have no wish to have the cause appear on any docket. He takes, it out of the jurisdiction of one court, by obtaining the order for a change of venue. He may have no wish to place it within the jurisdiction of another court. Better for him, possibly, that the suit abate, and cease to exist in any court. This was doubtless the reason, why the legislature inserted the last clause in section 3119 of the [168] Code. It was to enable, the party against whom the change of venne was obtained, to secure a transmission of the papers and transcript, when his adversary failed to do so, and, at the same time, secure it as a proper charge against the party who applied for and obtained the change of venue. We hold it was the duty of the party obtaining the change of venue to prepay the fees of a messenger to transport the papers, and this without any demand therefor. Neglecting to do so, and the papers not reaching their proper destination in consequence, thereof, does this work a discontinuance of the cause? The case remained off the docket about seven years. In 1 Tidd’s Prac. 678, it is said: “The process or proceeding in a suit should be regularly continued -from term to term, or from one day to another in the same term, between the commencement of the suit and final judgment; and if there be any lapse or want of continuance that is not aided, the parties are out of court, and the plaintiff must begin de novo.” In 3 Black. Com. 296, the language is: “ When a plaintiff leaves a chasm in the proceedings of his cause, as by not continuing the process regularly from day to day and time to time, as he ought to do, the suit is discontinued, and the defendant is no longer bound to attend.” We have not followed these extreme rules of the common law. With us, a common law action being commenced in court, it is the duty of the clerk to place it on the docket, and continue it there from term to term, until it is disposed of by some order of the court, His mere failure to continue the cause on the docket, unless such failure is caused by some positive act of the plaintiff, or by his omission to perform some precedent duty enjoined on him by law, does not work a discontinuance. On the other hand, if the cause is kept off the docket by the act of the plaintiff, or by his failure to perform a duty preliminary to the right to have it placed on the docket, this will amount to a discontinuance. — Drinkard, v. The State, 20 Ala. 9; Griffin v. Osbourne, Ib. 594; Harrall v. The State, 26 Ala. 52; Ex parte Remson, 31 Ala. 270; Forrester v. Forrester, 39 Ala. 320; Ex parte Rivers, 40 Ala. 712; Glenn v. Billingslea, 64 Ala, 345; McGuire v. Hay, 6 Humph. 419; Peirce v. Bank of Tenn. 1 Swan, 265; Moreland v. Pelham, 2 Eng. (Ark.) 338; Gilbert v. Hardwick, 11 Ga. 599. It is contended, that inasmuch as Hanna, who was the real party in interest, soon after the order- was obtained for the change of venue to Etowah county, but after the next term of - the Circuit Court of that county, filed á bill, alleging that the case was pending in Etowah county, and obtained an injunction, restraining the plaintiff from further prosecuting that suit, this precludes the present .relators, who are the mere tenants under Hanna, from claiming a discontinuance of this cause, on the [169] ground alleged. This argument rests on two grounds: first, that by averring the cause was pending in Etowah court, Hanna must be held to the admission that it was pending 'there; and second, that by enjoining the prosecution of the suit at law, he not only authorized, but required the plaintiff to abstain from any steps to bring about a trial of that cause. When the bill was filed' — about one month after the order for change of venue was granted — -the suit at law had ceased to be a suit pending in De Kalb county. If it was pending anywhere, it was in Etowah county. The one court immediately succeeded the other, and it could not be contended that a failure of the De Kalb clerk to forward the papers and transcript to that term of the Etowah Court, was such an omission of duty by the plaintiff as to work a discontinuance. Only one day intervened between the courts, and that a Sabbath. Technically, the cause was pending in the Etowah Circuit Court. This averment in ITanna’s bill would not estop him from claiming the discontin-. nance, if he had been the defendant of record in that cause. The injunction obtained, restrained the plaintiff from prosecuting the suit at law. - If steps had been taken to bring on a trial, or to prepare for it, this would probably have been a violation of the injunction. Docketing the cause, and having it, by order of the court, continued under the injunction, could not be construed as a disregard or contempt of the order of the court. It would have been simply a mode of preserving the vitality of the cause, and is the customary method in such cases. It could do the complainant in the injunction suit no harm. — Parker v. Wakeman, 10 Paige 485; Hudson v. Plets, 11 Paige, 180; Clark v. Wood, 11 Halst. 458; High on Inj. § 856. By the the plaintiff’s omission to prepay the fees of the messenger, the ease was kept off the docket of the Etowah Circuit Court for seven years; and during that time there was no authority for placing it on any other dockeh This worked a discontinuance. There is in the record in this cause a written consent, signed , by the presiding judge of Etowah Circuit Court, waiving the issue of a rule nisi, and consenting that if this court reach the conclusion that the relators are entitled to relief, a peremptory writ of mandamus may at once issue. It is therefore ordered and adjudged that the writ of mcmdamus issue to the judge presid- • ing in the Etowah Circuit Court, directing and commanding him to stike from the docket of said court the cause described in the relation and proceedings in this cause, unless upon being certified of this judgment he make stich order without further mandatory direction of this court. [170] No costs awarded in this cause. — Ex parte Garland, 42 Ala. 559. Brickell, C. J., not sitting.