Shannon v. Smith

Campbell, J.

This is an action of ejectment wherein the title of the plaintiff in error depends upon a foreclosure decree granted by the circuit court for Yan Burén county, in a cause begun in Cass county, and claimed to have been transferred.

The order of transfer was made by the court in Cass county, by Hon. Daniel Blackman, sitting as circuit judge. It purports to be based on an affidavit that Judge Black-man “was formerly of counsel for the complainants in the above entitled cansé, and for that reason is unable to act as judge in said cause.”

The order was as follows, after the usual introduction: “it is ordered that the register of this court transmit all the files and papers, copies of orders in said cause, to register in chancery in Yan Burén county, in said state of Michigan.”

The policy of this state does not favor the action of judges in cases where they have been counsel, but we have no statute which takes away the jurisdiction of any court because of the incapacity of its judges to sit in given cases. Every case must remain in the court where it originated, until removed by lawful authority. And we have found no grounds for the assertion that any court has a general and inherent power to remove from itself to another court any cause pending in it. That power can only be given by statute, and the statute must be complied with.

The change of venue at common law did not remove the record, but only changed the place of trial. Under our statutes and constitution, the local tribunals are all separate and independent, and special and broad provisions have been made suitable to our own system, and required by the change from a system of nisi prius. No necessity has existed for changes of place in the hearing of equity cases generally, because they are not tried like jury causes, and circuit courts may be -held by any judge who may be requested, as well as by the judge of the circuit where the *453 court is held. No transfer has been provided for except under peculiar circumstances.

One of these is the disqualification of the judge by reason of his having been connected with the controversy as counsel. Proceedings in such cases are governed by §§ 4971 to 4978 of the Compiled Latos, and these sections cover the whole ground.

They provide for the exercise of some discretion in appointing the place of transfer, and this determination is important, and may have a bearing on the convenience and expense of litigation. Under our rules requiring all chancery cases to be brought in particular localities, the place of the litigation can seldom be indifferent; and under this statute a case must be transferred, if possible, to a county where some party or his counsel resides, while they may not all reside in the same place. The law has expressly excluded the interested judge from acting on this important question, and has required the order to be made by a commissioner, or a judge of another circuit. — § 4972.

There is no room, under this statute, for the action of the judge whose relations have rendered it improper for him to try the cause. He is not expected or allowed to exercise his discretion in any part of the proceedings. And the order of Judge Blackman in this case was not authorized by any rule of law that we have been able to discover. It follows that the cause was never lawfully transferred, and never came within the jurisdiction of the Yan Burén circuit court.

It is very doubtful whether the order made here was one which even in form directed a transfer of the cause. An order for the transmission of papers to a register is not an order of transfer of a cause to a court. But the want of power to make any order at all, renders its form immaterial.

The court below decided rightly, that the case was not transferred; and the judgment must be affirmed, with costs..

Graves, Ch. J., and Cooley, J., concurred.