Moreland v. Riley

Change of Venue — Confession of Motion — Effect — Summons — Prohibition. Change of Venue — Where Movant Entitled to Change, Court Deprived of Power to Pass upon Other Questions in Case. 1. Where a defendant moves for a change of venue upon a ground which entitles him to the change as a matter of right, the court must grant the motion, and after presentation of such a showing the court has no right to pass upon any other question in the case, the movant being thereafter entitled to have all other judicial action in the cause determined in the court of the proper county. Summons — Issuance Exhausts Power of Clerk to Issue Other Than Alias Summons. 2. After summons is issued correctly in compliance with section 9107, Revised Codes of 1921, no other summons, save an alias summons, may issue, and the latter only upon a showing that the statutory exigency exists and that the requirements of the statute have been met. Change of Venue — Demand not Waived by Motion to Quash Service of Void Summons. 3. Where pending a motion for change of venue plaintiff obtained a "new" but not an alias summons in an unauthorized manner, the defendant in unnecessarily attempting to protect itself by moving to quash the service of such summons did not waive its Page 339 demand for change of venue, and the court in refusing to quash committed error. Same — Confession of Motion Tantamount to Stipulation for Change — Duty of Court. 4. Confession of a motion for change of venue is tantamount to a stipulation for a change, and under section 9102, Revised Codes, where the parties stipulate to that effect, the district court must order the change to the county agreed upon. Prohibition — When Writ will not Issue. 5. Where the judge of the district court to which the venue of a cause had been changed, in answer to an order to show cause on application for writ of prohibition asked for on the ground that in the absence of relators appearance in answer to a void summons said judge would render judgment by default, denied knowledge that the cause had been transferred to his court or any intention to take action in it, and averred that relator had not applied to his court for any relief, the proceeding will be dismissed, the presumption being that the court will follow the law.