Hitchcock v. McKinster

Maxwell, Ch. J. This is an action of forcible entry and detainer for the recovery of the possession of certain real estate described in the complaint. On the trial of the cause before a justice of the peace and a jury, a verdict was returned in favor of the plaintiffs, on which judgment was rendered. The case was then taken on error to the district court, where the judgment of the justice -was reversed, and from such judgment of reversal the plaintiffs bring the cause into this court on error. There is no bill of exceptions, and the only evidence as to the procedure in the justice's court is contained in the several transcripts set forth in the record, which will be noticed presently. The'action was commenced before one T. J. Smith, a justice of the peace. The complaint is as follows: “N. F. Hitchcock and J. F." Townsend, Plaintiffs, vs. J. M. McKinster, Defendant. “ Said plaintiffs allege that they are entitled to the possession of the south-west quarter of section thirty, town seven, range ten, in Otoe county, state of Nebraska; that plaintiffs have been entitled to the possession of said prem [150] ises for more than three weeks now past; that said defendant unlawfully and forcibly detains said premises from said plaintiffs and has so unlawfully and forcibly detained the same for more than three weeks last past; and on the 6th day of May, 1885, plaintiffs served a notice on defendant, describing said premises, to quit within three days after that time; that said time has elapsed and defendant still wrongfully detains said premises. Wherefore plaintiffs pray judgment against defendant for restitution of said premises and costs of suit.” The defendant filed a motion for a change of venue and the change was granted to one Charles Turnbull. From some cause, which does not clearly appear in the transcript, but which was stated on the argument, of the case to be the bias of Mr. Turnbull, he was unable to act. He thereupon entered an order transferring the cause to.one M. G. Reed; on the next day ascertaining that Mr. Reed had resigned the office of justice of the peace, Mr. Turnbull entered a further order transferring the cause to one C. Bassett, a justice of the peace, and the papers were transmitted to him. The defendant thereupon moved to dismiss for the following reasons, viz’: “ Because this action is not properly brought before this justice on change of venue, because the justice from whence this case was sent could confer no jurisdiction on this justice, to-wit: £ Because there was no authority of law for said Bassett to entertain and try this action because it is not properly before him.’ Therefore defendant asks that this action be dismissed.” The motion was overruled, to which defendant excepted. It was admitted on the argument that Mr. Turnbull having privately stated to the' attorney of plaintiffs and also of the defendant, that he was unable to try the case by reason of his bias, the defendant thereupon filed a motion for a change of venue, which was granted as heretofore stated. The transcript from Mr. Turnbull’s docket is as follows: [151] “ Hendrick, Otoe County, Neb., May, 19, 1885. “In justice court, before Charles Turnbull, justice of the peace in and for' Otoe county, Nebraska. N. E. Hitchcock and J. F. Townsend, plaintiffs, vs. J. T. McKinster,'defendant. “May 19, 1885. A certified transcript from the docket of T. J. Smith, J. P. in the above case, was filed oh change of venue being taken from said Smith as such J. P. on application of defendant; May 19, 1885, motion to dismiss filed by defendant and was argued by parties. May 19, 1885, motion overruled, defendant excepts. May 19,1885, defendant files motion for change of venue supported by affidavit. May 19, 1885, change of venue granted upon defendant paying costs of transfer. Change of venue granted -to Matthew Reed, J. P„ South Branch precinct. “Costs up to date: Docket, 25 cents; transcript and transfer, 75 cents. Paid by defendant. Charles Turnbull, Justice of the Peace.” Also the following order: “May 20, 1885. On taking papers of above cause to Matthew Reed, found that gentleman had resigned the justiceship. Transferred .the cause to C. Bassett and changed time one hour later; wrote and notified all parties concerned of the change. ' Charles Turnbull.” • Sec. 958a, code of civil procedure, provides as follows: “That in all civil and criminal proceedings before justices of the peace, any defendant in such proceedings may apply for and obtain a change of venue by filing an affidavit in the case made by the defendant, hi's agent, or attorney, stating that the defendant cannot, as the affiant verily believes, have a fair and impartial hearing in the case on account of the interest, bias, or prejudice of the justice, and by paying the costs now required to be paid by defendant on change of venue, for the causes and in the cases mentioned in chapter four of title thirty, part two of the re [152] vised statutes, and thereupon the proceedings shall be transferred to the nearest justice of the peace, to whom the said objections do not apply, of the said county, to be proceeded with in the manner pointed out for the transfer and procedure in cases of change of venue for cause mentioned in said chapter four.” Sec. 958 b, code of civil procedure, provides that “The application shall be made before entering upon the merits of the case by the introduction and reception of evidence; and no second change of venue shall be allowed for the same cause in the same proceeding.” 1. The motion to dismiss was properly overruled. The fact that a cause on a change of venue was transferred to a justice of-the peace who is biased or prejudiced against one or both of the parties, is no cause for dismissing the action. The object of granting a dhange of venue is to secure-a fair tribunal for the hearing of the cause, so that if possible a correct judgment shall be rendered. If objections are found to exist against the justice to whom the cause was transferred so that a fair trial cannot be had before him, a defendant no doubt may move to remand the cause to the justice granting the change, and if he fails to do so, the justice to Avhom the cause was transferred may proceed with the trial. 2. The second change of venue was granted on the motion of the defendant, and he cannot predicate error upon the ground that his own motion was sustained. The statute, Avhile it provides for only one change, does not declare the proceedings of a second change to be void. At the most such second change is erroneous, but only the party injured thereby can complain. The defendant, therefore, is estopped by his own motion from complaining of the ruling of the court in sustaining it. 3. Turnbull, in sustaining the motion granting a change of venue, made an order transferring the case to one Mr. Reed, whom he supposed to be the nearest justice of the peace to whom no objection could be made. On the next day, ascertaining that Reed had resigned the office of jus [153] tice, lie changed the entry by ordering the change to be made to one C. Bassett, a justice of the peace. In this we think there was no error. Mr. Bassett appears to be the nearest justice to whom no objection could be made, and the entry of the preceding day was made under a misapprehension of the facts and failed to transfer the cause to another justice for trial. The theory of the code is, that an action having been properly commenced shall not be dismissed upon slight, trivial, or merely technical grounds where the court lias jurisdiction of the subject matter and parties, until a trial has been had upon the merits; and this rule applies to proceedings before justices of the peace. There is no complaint that Mr. Bassett was biased or prejudiced, or that a fair trial was not had before him. We therefore hold that there was no error in his entertaining jurisdiction. 4. The defendant alleges that there was no allegation in the complaint that written notice to leave was served upon him three days before bringing the action, the language being: “Plaintiffs served a notice on defendant, describing said premises to defendant.” It is unnecessary to allege in the complaint that the notice was in writing, although on the trial it must be proved to be so. Meyers vs. Morse, 15 Johnson, 425. Moak’s Van Santvoords Pleadings, 3d edition, pages 205 and 255. The complaint upon that point, therefore, is sufficient. 5. Objections are made to the form of the notice and the service of the same; but as there was no bill of exceptions before the district court, hence none before this court, it is impossible to say upon what evidence the judgment of the justice of the peace was predicated; we cannot, therefore, review the facts. The judgment of the district court is reversed, and that of the justice reinstated. Judgment accordingly. .The other judges concur.