Reed v. Marple

The opinion of the court was delivered by Wells, J. : The primary contention of the plaintiff in error is, that a justice of the peace before whom an application for a change of venue is pending cannot try and determine the legal competency of another justice of the same township to try said cause. In this we think the plaintiff in error is mistaken. Section 43 of the justices' code (Gen. Stat. 1897, ch. 103), under which this venue was changed, reads as follows : “ If the place of the trial be changed on account of the bias or prejudice of the justice, or of his being a material witnesss in the cause, such cause shall be transferred for trial before some other justice of the [172] peace of the same township, if there be one there legally competent to try such cause. If there be no such justice within such township, or if such change -be granted on account of the bias or prejudice of the citizens of such township against such party, the case shall be taken to some justice in an adjoining township of the same county.” This clearly presupposes the authority of the justice to determine " if there be one there legally competent to try such cause” ; and if he has such authority, the erroneous exercise of it does not prevent the j ustice to whom the case is sent from acquiring jurisdiction thereof. Any other conclusion would defeat the object of t]ie law. As an illustration, there are three justices in a township; an action is brought before No. 1; the defendant takes a change of venue to No. 2 ; the plaintiff then, under the authority of Herbert v. Beathard, 26 Kan. 746, applies for another change; justice No. 3 is the husband of the plaintiff, as is well known to all the parties, but justice No. 2 has no authority to try and determine the legal competency of No. 3 to try the case, and so, of course, must send it to him; then, assuming that the defendant has a right to a second change of venue, and makes application therefor, must not No. 3, under the application of the same rule, send it back to No. 1 ? As was held in Barnhart & Brother v. Davis, 30 Kan. 524 (2 Pac. Rep. 634) : "The justice may, in some cases, exercise judicial discretion by determining the question as to what justice he will send the case.” An erroneous exercise of that discretion, or an erroneous exercise of judgment as to the disqualification of other justices, will not defeat the jurisdiction of the one to whom it is sent. "VVe do not find anything in the other contentions of the plaintiff in error that can in any manner affect the [173] jurisdiction of Marple to try the cause, or that requires any special consideration. The judgment of the court below will be affirmed ; and the said J. H. Marple, justice of the peace, or his successor in office, is directed, within sixty days after the entering of the mandate herein in the court below, to set a day and date for the hearing of said cause at his office, giving each party five days’ notice in writing thereof; and thereafter said case shall be proceeded with, so far as practicable, the same as if this action had not been brought. '