People ex rel. Bell v. Zane

Mr. Chief Justice Scott delivered the opinion of the Court: At the January term, 1883, of this court, leave was given to file a petition, in the name of the People of the State, for a mandamus, to require the Hon. Charles S. Zane, judge of the circuit court of Sangamon county, to take jurisdiction of the case of the People against Lewis Biggs, being an indictment for murder, and to proceed to try the cause so soon as the same could be done with justice to the parties concerned. Accordingly such a petition was filed, in which were set forth all the facts on which the judgment of the court is invoked. No question is made as to the jurisdiction of this court to afford the relief prayed for in the petition. Respondent, by his answer, asks the court to “take cognizance of the cause, and hear and determine the same, and render such judgment therein as to the court may seem meet and proper, and in accordance with law. ” But had the jurisdiction of this court in the premises been challenged, its jurisdiction in such cases is manifest from its previous decisions. The People v. Scales, 3 Scam. 351; Brennan v. The People, 15 Ill. 511. Concerning the facts of the ease there is no disagreement, as they all appear in the pleadings, by the admission of respondent. At the February term, 1882, of the Macoupin circuit court, Lewis Biggs was indicted by the grand jury of that county for the crime of murder. At the September term of that court next after the indictment was found, the accused presented his petition for a change of venue in the cause, on the ground the 'inhabitants of the county were prejudiced against him, and asked that the venue of the cause be changed to some county where the same prejudice did not exist. The prayer of the petition was granted, and an order entered to change the venue to the county of Christian, and the usual other orders in aid thereof were made. After-wards, and while the prisoner still remained in the custody of the sheriff of Macoupin county, and the records and all original papers in the cause still remained in that court, on the application of the accused, made at the same term of court at which the order just recited was entered, the circuit court of Macoupin county set aside its former order entered to change the venue of the cause to the county of Christian, and by an order entered of record at the same term of court, changed the venue of the cause to the county of Sangamon, and made the usual further orders as to sending the prisoner, and the records and papers in the cause, to that county. The transcript of the record and the original papers in the cause were transmitted, by the clerk of the Macoupin circuit court to the Sangamon county circuit court, and the sheriff, as was his duty, transferred the prisoner to the custody of the sheriff of Sangamon county. When the cause came up for trial in the county to which it had been sent, the State’s attorney of that county entered a motion to remand the cause to the county of Macoupin, for the reason the circuit court of Sangamon county had no jurisdiction to try the cause. The accused being present, in proper person and by written consent waived all objections to the jurisdiction of the court, and offered thereby to submit to its jurisdiction, but the court allowed the motion so far as to refuse to assume jurisdiction of the cause, and ordered the clerk to transmit the papers of the cause to the clerk of the circuit court of Macoupin county, and directed the sheriff to deliver the body of the prisoner to the sheriff of Macoupin county without delay. On the facts, as they are admitted to be, no reason is perceived why the circuit court of Sangamon county should not have taken cognizance of the cause submitted to it, since the prisoner waived all objections to its jurisdiction, and to have caused the accused to be tried for the crime alleged against him, according to law, so soon as the same could be done with justice to the parties concerned. The statute authorized the circuit court of Ma'coúpin county to change the venue of the case then pending before it, for certain reasons specified, on the application of the accused. Its jurisdiction in such matters is obvious, and it acted within statutory power when it made the order changing the venue on the application of the prisoner, as was done in this case. The utmost that can be claimed is, the venue was improperly changed by the court in which the indictment was found against the prisoner. But can the circuit court of the county to which the cause is sent inquire into that fact, and if, in its opinion, the proceedings changing the venue were irregular, for that reason refuse to take cognizance of the cause, if the prisoner himself makes no objection to the jurisdiction of the court? This question seems to be fully'settled, both by. the statute and the previous decisions of this court. Section 35 of the Venue act, Rev. Stat. 1874, declares, “all questions concerning the regularity of proceedings in obtaining changes of venue, and the right of the court to which the change is made to try the cause and execute the judgment, shall be considered as waived after trial and verdict.” In the case of The People v. Scates, supra, although the point was not definitely passed upon because it was not necessary to the decision, it was said the court to which the cause is sent is not a court to review and reverse the decision of the court making the order changing the venue of a cause, and for that reason has no authority to inquire into the regularity of such order. This view conforms to the obvious meaning of the statute. Irregularities in obtaining a change of venue, where they exist, concern no one but the party asking it, and if he simply fails to make objection, before going to trial, to the jurisdiction of the court to try his cause, all irregularities that may have intervened are, by the provisions of the statute, considered waived. This construction of the statute would seem to exclude the idea the court to which the cause is sent may, of its own motion, refuse to take cognizance of the cause. In Brennan v. The People, supra, it was held that even if the venue was improperly changed, the defendants could not complain of what was done at their instance, and that all irregularities in obtaining the change of venue might be waived by the defence,—and that was a capital case. In its opinion in the Brennan case, the court recognized the rule declared in The People v. Scates, that although the venue may have been improperly changed, it was the duty of the court to which the case was sent to assume jurisdiction to try the cause, unless objections were made by defendant himself. It was there distinctly held that as the defendants in that case made no objections in the court below to the change of venue, they were concluded, by statute, from making any in the Supreme Court. In Logston v. The State, 3 Heisk. 414, it was said by the court in considering the jurisdiction of the court to which a case was sent on a change of venue: “The indictment being presented, and no objection made by the accused or his counsel, the court was authorized and obliged to proceed with the trial.” There are obvious reasons in support of the rule adopted in such cases. Should the court to which the cause is sent be permitted, of its own motion, to refuse to take cognizance of the ease when the prisoner himself makes no objection, it might greatly embarrass the administration of the criminal law, and lead to most unprofitable controversies between courts of equal jurisdiction. But the decision may be placed on the broader ground that while the record and the original papers in the cause remain in the possession of the court making the order, that court, on the application of the accused, may change its previous order in respect to the venue, if done at the same term, and may change its order as to the county to which the cause should be sent, or if the accused demand it to be done, the court might vacate the order to change the venue, and allow him to withdraw his application. This proposition, as will appear in the sequel, has for its support both principle and authority. Undoubtedly the law is, it is the order of the court changing the venue that gives jurisdiction to the court to which the cause is sent. That jurisdiction in no sense or degree depends on any ministerial act of the clerk of the court making such order. But it is equally well settled that the court to which the cause is sent can not proceed, if the accused objects to its jurisdiction, until it has obtained possession of the cause,—that is, until the transcript of the record from the court making the order, and the original papers which the statute requires shall be sent with it, shall have been lodged with the court. Unless that is done the jurisdiction of the court to which the cause is directed to be sent is not so complete, by the mere entry of the order to change the venue, that it may proceed to try the cause over objections by defendant. It is for the obvious reason the jurisdiction of the court does not appear from anything on its own records. Text writers uniformly state the doctrine to be, that by the common law, at the term at which any judicial act is done the record' thereof remains in the breast of .the judge of the court, and is subject to change at that term by the judge, but after the term is past no alteration of the record is allowable. (3 Blackstone’s Com. 407; Freeman on Judgments, chap. 4, sec. 69.) Amendments and changes in judgments and decrees are permitted at the same term at which they are entered, on the hypothesis the record still remains with the court, and has not passed from its control. After the close of the term the record is complete,, and having passed from its control there remains no power in the court or judge to make changes in it. The rule in this respect is recognized wherever the common law prevails, as applicable alike-to criminal and civil causes, and is- so reasonable it commends itself to the common understanding. Without power in the courts to allow amendments to its records there would often be a failure of justice. It would be quite difficult to assign any good reason why this doctrine of amendments, so indispensable in many instances to the attainment of justice, may not be applicable to orders changing the venue in causes as well as to other judicial acts, while the record and original papers remain with and under the control of the court. The application of the rule to the dismissals of actions is a matter of almost daily occurrence in the courts, and its correctness has never-been called in question. Under the practice that prevails, an order dismissing a cause may be set aside, and the cause reinstated at the same term of court. Obviously the order of dismissal, if suffered to become absolute by the adjournment of the court for the term, would operate to dispossess the court of all jurisdiction over the casé; but it is commonly conceded the reinstating order, if made at the same term, gives the court the same jurisdiction it originally had in the premises. The reason and necessity for the application of the rule to matters of venue is the same, and it would seem the same principle ought to control. So long as the record and original papers remained with the court making the order, the accused acquiescing in its jurisdiction, that court, on principle, would appear to have the same control over venue orders as it would have over any other record in its possession. Confessedly the court may change orders in other judicial proceedings at the term when the same are entered, and why may it not do the samé thing touching orders concerning venue, at any time, until it shall have lost control of the case by adjournment, or otherwise ? If any distinction exists in this respect, it should rest on some reason that can be appreciated by the common judgment, or otherwise none should be tolerated. It will be remembered the court to which the first order entered directed the- case to be sent, never, in fact, obtained possession of the cause or the custody of the accused. The record and the original papers remained with the court making the order, and it seems clear that court, on the application of the accused, might change its order as it did in respect to the venue, as it still had control of the cause, upon satisfactory reasons being shown for so doing. As has been seen, the accused could not complain of what was done on his own motion, and the court to which it was subsequently sent would have jurisdiction to try the cause according to law. A case analogous in principle with the one being considered is Sevalius v. Pickel, 30 Wis. 507. Had the record and the original papers in the cause passed to the possession of the circuit court of Christian county, under the order changing the venue to that county, or had the court adjourned for the term, then the circuit court of Macoupin county would have lost all jurisdiction over the ease, and could thereafter make no order in it. Observing this distinction, all difficulty suggested in the practical application of the rule adopted would be obviated, and there could ■ be no conflict between courts of equal jurisdiction. The peremptory writ of mandamus must be allowed, and if will be so ordered. Mandamus ordered.