court of jurisdiction. This must depend, in part, upon the grounds for the application as well as upon the language of the statute under which the change is asked for. Where the ground of the application is that the court has not jurisdiction because the action has been brought in the wrong county it is generally, but not uniformly, held that the right to a change is absolute and that the mere making of the proper application divests the court of all power to proceed further in the cause than to make the necessary order for the removal of the same to the proper court.1 In some of the states where application for removal is made on other grounds than that the action is brought in the wrong county, the right to the change, upon proper application therefor, is absolute, and upon making such application the jurisdiction of the court then ceases.2 Under such a rule the order for the change must be made as a matter of course, and it is not the order, but the application, that terminates, or suspends, the jurisdiction of the court. But, strictly speaking, whether it is the application or the order that transfers it, the jurisdiction is only suspended and is subject to be revived by a failure on the part of the applicant to comply with subsequent conditions, where such conditions are imposed, such as payment of costs, transmission of papers, and the like.3 The order for removal does not generally transfer jurisdiction to the court to whom the case is ordered to be sent at the time the order is made. This is done by filing a transcript of the order and the papers or transcript of the same, as may be required, in that court." In the meantime, unless authority is given to one or the other of the courts to act, neither court has jurisdiction to proceed in the cause. But when the transcript of the order of removal reaches the court to which the cause is 1 Ante, sec. 24, p. 151, secs. 45, 47; Smith v. People, 29 Pac. Rep. 924. 2 Ante, sec. 47; Fatt v. Fatt, 78 Wis. 633; 48 N. W. Rep. 52; Stevens v. Burr, 61 Ind. 464. 3 Ante, sec. 24, p. 151, secs. 47, 48. Fawcett v. The State, 71 Ind. 590. removed, it is the order of the court from which it is transmitted that vests the former court with jurisdiction.1 And no limitation of such jurisdiction can be effected by any provision in an order, otherwise sufficient to vest full jurisdiction, nor can any condition as to the time or manner of taking or acquiring such jurisdiction, not provided for by law, be imposed by such order.1 But there are cases holding that by the entry of the order the court making it loses jurisdiction at that moment, and the court to which it is ordered removed acquires jurisdiction thereby, and at the same time.2 Where some subsequent act on the part of the applicant for the change is required, as for example the payment of costs, the jurisdiction of the court stands suspended, when the order is made, until such act is performed, and if it is not performed within the time fixed by law or the order of the court, the court may set aside its order granting the change and resume jurisdiction of the action.3 If it appears from the order, or other part of the record, that no legal cause for removal exists the court to which the cause is sent has no jurisdiction and should refuse to hear the same.1 It is otherwise if the facts authorizing a change of venue do not in fact exist, but the fact of their non-existence does not appear from but must be proved by evidence dehors the record. The proper place to contest the question whether a cause for removal is shown in such case or not is in the court in which the application is made. It can not be contested by evidence outside of the record in the court to which the cause is removed." It is held that if a removal is authorized by law, only 1 State v. Weddington, 103 N. Car. 364; 9 S. E. Rep. 577. 2 In re, Whitson, 89 Mo. 58; 1 S. W. Rep. 125. 3 Estep v. Armstrong, 69 Cal. 536; 11 Pac. Rep. 132. Kahanek v. Galveston II. & S. A. Ry. Co., 72 Tex. 476; 10 S. W. Rep. 570; Taylor v. Williams, 26 Tex. 583. 5 See Kahanak . Galveston H. & S. Ry. Co., 72 Tex. 476; 10 S. W. Rep. 570; Hall v. Jackson, 3 Tex. 305, 308; Stearns v. St. Louis & S. F. Ry. Co., 94 Mo. 317; 7 S. W. Rep. 270; Squires v. Chillicothe, 89 Mo. 226; 1 S. W. Rep. 23. on condition, and the record fails to show the existence of such condition, the court to which the action is removed does not acquire jurisdiction.' The presumption is, usually, however, that the court acted rightly in granting the change, and that the circumstances authorizing the removal of the cause actually existed." But the distinction between a case where there is an entire want of jurisdiction in the court to grant a change of venue, or one in which no change could be granted under any circumstances, or one where a change is authorized upon a certain showing and no showing whatever has been made, and cases where the court has jurisdiction to grant a change, and the proceedings had to obtain it are defective, merely, must be borne in mind. In the former the order of the court is a nullity and vests no jurisdiction in the court to which the cause is removed.3 In the latter the order is erroneous, and not void, the latter court acquires jurisdiction, and the action of the court in granting the change can only be reviewed on appeal or attacked in some other direct way authorized by law. It can not be attacked collaterally. And the objection should be taken in the court making the order, and not in the court to which the cause is removed, and the necessary exception taken and preserved there, as a foundation for the appeal.5 There are cases, however, which seem to overlook this distinction.6 Where the question of removal depends upon the proof of certain facts, and the evidence is not conflicting, but is all one way, the question on appeal from an order grant 1 Howe v. Stevenson, 84 Ky. 576; 2 S. W. Rep. 231. * Hall v. Jackson, 3 Tex. 305; Shirts v. Irons, 47 Ind. 445, 453. * Baum v. Burns, 66 Miss. 124; 5 Sou. Rep. 697. Stearns v. St. Louis & S. F. Ry. Co., 94 Mo. 317; 7 S. W. Rep. 270; Squires. Chillicothe, 89 Mo. 226; 1 S. W. Rep. 23; Fellows v. Canney, 75 Mich. 445; 42 N. W. Rep. 958; Joerns v. La Nicca, 75 Ia. 705; 38 N. W. Rep. 129; Dimmitt v. Robbins, 74 Tex. 441; 12 S. W. Rep. 94; Gage t. Downey, 19 Pac. Rep. 113, 118. 5 Ante, sec. 49; Squires v. Chillicothe, 89 Mo. 226; 1 S. W. Rep. 23. ing or refusing a change of venue becomes one of law, and the decision of the court below, or officer who is authorized to pass upon the question, is not conclusive.' But if the evidence is conflicting the decision is conclusive and will not be reviewed on appeal, unless there appears to have been an abuse of discretion.3 It is held, in some cases, that where the place of trial is changed by consent no order for such change is necessary, and that the consent of parties and filing of the papers in the court to which the cause is to be removed, is all that is necessary to give that court jurisdiction.* It has been held that a conditional order for a change of the place of trial upon payment of costs may be made, followed by an absolute order of transfer upon such costs being paid, or an order denying the change on the ground that such costs have not been paid." The court making an order changing the venue has jurisdiction to set such order aside on the ground that it was inadvertently made." 52. REMANDING CAUSE.-If the cause has been removed without authority of law or under such circumstances as would render the order of removal void, no application to remand the cause is necessary, and it would seem that the court to which it has been transferred would have no jurisdiction to make any order for the return of the case to the proper court because, the order being void, the jurisdiction has never been transferred, but remains where it was in the beginning. Such being the case the court to which the action has been attempted to be transferred 1 Curtis v. Wilcox, 74 Mich. 69; 41 N. W. Rep. 863; Kennon v. Gilmer, 131 U. S. 22; 9 Sup. Ct. Rep. 696. 2 Fellows v. Canney, 75 Mich. 445; 42 N. W. Rep. 958; Thompson v. Norwood, 19 N. Y. Sup. 632; Hamilton e. Des Moines & K. C. Ry. Co., 50 N. W. Rep. 567. 3 Thompson v. Norwood, 19 N. Y. Sup. 632; Ante, 46, 47. 4 Ante, sec. 47; Woodward v. Hanchett, 52 Wis. 482; 9 N. W. Rep. 468. 5 Armstrong . Superior Court, 63 Cal. 410. 6 Baker v. Fireman's Fund Ins. Co., 73 Cal. 182; 14 Pac. Rep. 686. 7 Ante, sec. 51. could be prevented from proceeding, and the court in which it was commenced could be compelled to proceed with it. But it has been held that where a change of venue has been ordered in a case, not authorized by law, which would render the order void, the court to which the case has been transferred may direct the case to be retransferred to the court making the order, and that an order for such transfer may be made by the appellate court on appeal.' If the action has been irregularly transferred and such irregularity has not been waived by a failure to make the proper objection in the court making the order, or in some other way, the proper practice is to move the court to which the case has been removed to remand the same to the court making the order. But if the proceedings resulting in the change are irregular, merely, and not void, the court to which the case has been removed has jurisdiction, and its refusal to remand the same is an error, merely, which can only be taken advantage of by a direct proceeding. And the error is one that may be waived by appearing and proceeding in that court. But it may be Under such circumstances the court can not arbitrarily and of its own motion remand the cause. remanded by consent of the parties." 1 Rogers v. Watrous, 8 Tex. 62, 65; 58 Am. Dec. 100. 2 Ante, sec. 49. 3 Ante, sec. 51; Mannix v. State, 115 Ind. 245; 17 N. E. Rep. 565. "Hazard v. Wason, 152 Mass. 268; 25 N. E. Rep. 465. 23 |