Wight v. Kirkpatrick

Citations

• 5 Scam. 339

Syllabus

<p>Error to Adams.</p> <p>1. Venue — procedure on change. When a change of venue is ordered, the statute clearly defines the duty of the clerk; he should certify and transmit a transcript of the proceedings previously had in, the cause, as the same appear from the record. The clerk should also certify and transmit therewith all of the papers filed in, and belonging to the cause. He is not required to copy the papers, but to transmit the originals, and at the same time certify them in such a manner as to render their genuineness certain.</p> <p>2. SAME. A convenient mode of certifying the papers filed in a cause, where a change of venue has been awarded, and one fully answering the objects of the statute, would be to place some mark of designation on each of the papers, as is the practice in referring to and filing exhibits in chancery, and then certify, in the transcript, that the accompanying papers, bearing such designation, are the original papers filed in, and appertaining to the cause.</p> <p>3. Same. The court to which the venue is changed, in order to proceed and determine the cause must have before it the pleadings of the parties, and all other papers filed during the progress of the cause in the court from which it is removed, as well as the action of that court prior to the change of venue. ’</p> <p>4. Same. Where the papers in a cause have not been transmitted by the clerk to the court to which the venue has been changed, it is the duty of the court, at the instance of either party, to grant a rule on the clerk, to certify and transmit the papers, and continue the cause until the order has been complied with. [* 340] If the papers are transmitted without the requisite certificate of their being the original papers in the cause, the court, upon motion, will grant the party leave to withdraw them, together with the transcript.</p> <p>If a motion is made to dismiss a cause wherein jthe venue has been changed, because the original papers have not been transmi