George W. Swepson, F. Dibble, The Tallahassee Railroad Company, et al., Appellants, vs. Wilkinson Call and James M. Baker, Appellees, 13 Fla. 337

RAHDALL, C. J., delivered the opinion of the court. On the 11th day of August, 1869, James M. Baker and Wilkinson Call filed their bill in chancery in the Circuit Court for Leon county, Second Circuit, against Calvin B. Dibble, George W. Swepson, Eranklin Dibble, M. S. Little-field, J. P. Sanderson, Edward M. Cheney, Alonzo Huling, John L. ReQua, Silas L. Hiblaek, The Tallahassee Railroad Company, The Jacksonville, Pensacola & Mobile Railroad Company, and Harrison ‘ Reed, Governor, &c., defendants, upon which the process of subpoena was issued and returned not served.

On the 27th day of August complainants presented to the Judge of the Second Circuit their petition, stating that, “ having by motion applied to your honor to grant the injunction prayed for in said bill, and your honor having refused to entertain or hear said motion on the ground of interest, being disqualified in the provisions of statute,” and thereupon pray that an order be made transferring said cause for hearing to the county of Columbia, in the Third Judicial Circuit; which petition was signed by the complainants.

On the same day the following order was made : “ Petition having been filed by the complainants in the above stated cause for a transfer of the above stated cause from this circuit on the ground that the presiding judge of this court is disqualified on account of interest in the subject of litigation in said cause, and cannot legally hear and determine the same, it is therefore ordered that the said cause be transferred in accordance with prayer of said petition to the county of Columbia, Third Judicial Circuit, to be heard and determined before the judge of that circuit.

It is further ordered, that the clerk of Leon Circuit Court be required to forward papers in said cause to the clerk of Circuit Court for Columbia county, together with a certified copy of this order. “ Ordered at Chambers, this 27th day of August, 1869. “P. W. White, Judge,” &c. On the 18th September the complainants presented to the Hon. A. A. Knight, Judge of the Fourth Circuit, a petition, stating that the Hon. T. T.

Long, Judge of the Third Circuit, was then, and had been for several days, absent from the State, and asking that the Judge of the Fourth Circuit take the said cause under consideration, and to grant such orders or decrees as to him should be deemed proper.

The bill of complaint was filed in the office of the clerk of the Circuit Court of Duval county, together with other papers, (which had been filed with the clerk of Leon county,) on the 20th September, and on the next day an amendment to the bill of complaint was filed in the Duval clerk’s office, wherein the complainants pray the immediate appointment of a receiver.

On the 20th September, also, the complainants filed their affidavit that they were “ unable to give a bond for a sufficient amount to cover the value of the property in litigation, or for the amount of the receipts and earnings of the Pensacola and Georgia, and St.

Marks, and Florida, Atlantic and Gulf Central Railroad Companies.” On the 21st September, the judge allowed an injunction as prayed in the bill, (which was issued out of the Circuit Court of Duval county,) and made an order appointing a receiver, and directing him to take possession of the Pensacola and Georgia Railroad and the Tallahassee Railroad and their properties, rights, credits, effects, trains, engines, equipments, receipts and money, and directing him to continue running the trains on said roads, and apply the net ea/rnmgs of the said P. and G. R.

R. to the extension of said road to the Chattahoochee river, &c., which said order was filed in the clerk’s office of Duval county, and the receiver subsequently filed his bond in said clerk’s office and took possession of said railroads. It does not appear that the papers in said cause were transmitted to the clerk of the Circuit Court of Columbia county, or that the judge of the Third Circuit ever made any order in the cause. The defendants in the suit have appealed from the above mentioned orders of the judge of the Fourth Circuit allowing an injunction and appointing a receiver, upon the following grounds: 1.

Because the Hon. A. A. Knight had no authority or jurisdiction to take cognizance of said cause, or to grant said interlocutory decrees and orders, or either of them. 2. Because the order appointing a receiver in said cause was made ex pa/rie, and without notice. 3. Because said order appointing a receiver was not warranted by any of the rules or principles of law or equity. 4. Because there is no equity in the bill of complaint to warrant the said interlocutory decrees and orders, or either of them. 5.

Because the record and files in said cause were never ordered to be transferred to the jurisdiction of the said Judge Knight or to the Circuit Court of the Fourth Judicial Circuit, or to said judicial circuit. 6. Because the files and papers in said cause have never been properly transferred to the Hon. T. T. Long, Judge of the Columbia. Circuit Court, Third Judicial Circuit, and were never filed in said court or in said circuit, and said cause was never pending therein. 7.

Because the said interlocutory decrees and o.rders granting an injunction and appointing a receiver work a great wrong and injury to the defendants, and were not necessary for the protection of any of the alleged rights of complainants, as set forth in said bill of complaint. The statute under which the application was made for the order to transfer the cause from the second to the third circuit is found in the laws of 1850,

chapter 373, being “

An act to provide for the more effectual administration of justice in the courts of this State.” It provides (section 1) “ that whenever any cause may be pending in any of the Circuit Courts of this State, and the same cannot be heard, tried or determined by reason of the disqualification of the judge of such court to hear and determine the same, it shall be lawful for either party therein to present his petition to such judge, praying that said cause be transferred to some other Circuit Court, and it shall be the duty of the judge so disqualified to have said cause removed to some court in the next nearest circuit; but if the judge in the nearest circuit be also disqualified, some other circuit shall be selected for that purpose.”

Section 3 provides “ that on the removal of a cause by virtue of this act, it shall be the duty of the clerk of the court in which the cause was pending to transmit all papers in. his office belonging thereto to the clerk of the court to which said cause may be ordered to be transferred, together with a certificate of the order of transfer, provided the party applying for the transfer shall first pay all costs which have accrued in such cause.” Erom these provisions of law, it. is manifestly necessary, in order that a cause may be transferred to another circuit on account of the interest of the judge before whom a cause is pending, that it shall appear, first, that the cause pending cannot be heard on account of the disqualification of the .judge; second, that a petition be presented, praying for a transfer; third, that the judges so disqualified shall order the cause to be removed to the “ next nearest ” circuit in which the judge thereof is not disqualified.

It is then the duty of the clerk to transmit all the papers belonging to the •cause to the clerk of the court mentioned in the order of transfer, with a certificate of that order, “ provided the party -applying shall first pay all the costs which have accrued in the cause.” Does it appear in this record that the judge of the Second Circuit was disqualified, and that a proper foundation was laid for making the order of transfer ?

The only reference to this fact is contained in the petition, which recites that the petitioners had applied to him for an injunction, and that he “ had refused to entertain the motion on the ground of interest, being disqualified under the statute.” The petition does not show that the judge was interested, nor does the judge certify or admit that he was interested or disqualified, nor does it appear that the judge had refused to entertain the motion on that ground, except as it is so recited in the petition.

We should not be disposed to enter upon this criticism, except as the matter is affected by another circumstance, to-wit: the statement in the petition that an application had been made to the judge of the Second Circuit to grant an injunction, which application he had refused to grant for the reasons stated in the petition.

The clerk, as we have seen, was directed to transmit all the papers in the cause to the clerk of Columbia Circuit Court, and it is stated in a certificate of the clerk among the files in the case, and was admitted in the argument, that he had not so forwarded the papers, but that one of the complainants had taken all the papers in the case, giving his receipt for the same, and that afterwards he had received by express a petition and order of transfer, which he filed and sent copies thereof to one of said complainants, and that the'papers had not been returned to the clerk’s office.

We have no means of knowing, therefore, that all the pcupers which had been filed in the Leon clerk’s office are copied into the record before us, which record is certified to us by the clerk of the Duval Circuit Court. It is probable that the evidence of the refusal of the judge to grant an injunction has been mislaid.

It is apparent that the papers had not been kept together, as we notice that the exhibits referred to as constituting a part of the bill of complaint, an affidavit of one of the complainants, and the certified copy of the order of transfer, were not filed with the bill in the Duval clerk’s office until three days after the allowance of the injunction and appointment of the receiver, and four days after the filing of the bill.

As we have thus no means of ascertaining from the record whether the judge refused to act for the reasons alleged in the petition, we are obliged to resort to a presumption of the fact, in order to sustain the order of transfer, and to conclude that it did not find its way to the Duval clerk’s office with the other papers in the case. If it were proper to presume the existence of jurisdictional facts, we should conclude that some evidence of the action of the judge in refusing to grant the injunction was somewhere in existence.

But if there was no such order, suggestion, admission, or other tangible evidence of the alleged interest of the judge, we must hold that the record, which ought to show everything necessary to sustain the jurisdiction, did not show affirmatively (as we think it should) that the judge was disqualified, and therefore authorized to order the transfer to be made. But we do not think it necessary to determine as to the regularity of the proceedings which were had in the Eourth Circuit upon this ground. It is noticed for the purpose of calling attention to the irregularity, aad in order that it may be rectified.

Assuming, then, that the order of transfer was regular, it was the duty of the clerk of the Circuit Court of Leon county, “ provided the party applying for the transfer first pay all costs,” to transmit all the papers to the clerk of the Circuit Court of Columbia county, with a certificate of the order of transfer. The mode of transmitting the papers is not specified. It was suggested that it was not proper to send them by a party to the suit.

We do not see, however, why a party interested in the safe conveyance of the papers may not be entrusted with them for that purpose, or how any injury could accrue thereby to the other party in a ease like the present. It is contended that the jurisdiction of the cause remains in the Circuit Court of Leon county, because the clerk has never transmitted the papers to the clerk of Columbia county-pursuant to the order. On the other hand, it is insisted thaf; when the order was made and filed the jurisdiction of the judge granting the order ceased, except for the purpose afi enforcing obedience to it.

We think the jurisdiction of the judge over the earns ceases whenever it appears, or whenever the fact exists, thaf, he is interested in' it and that he can “ entertain no motion, in the cause (other than to have it tried by a competent tribunal,”) and the Legislature has declared that all orders, decrees and judgments made or entered by such judge, except as stated, shall be null and void. Laws of 1862, p. 13. When the disqualified judge orders the cause to be “ ¡removed,” the cause still remains pending in the same county until the removal is effected.

The law directs the clerk to transmit the record and papers upon condition that the eosis be first paid; and this contemplates that the record remains in statu guo until the condition is complied with. Again, the latter clause of

section 1 of the act of 185®,, heretofore quoted, says: “But if the judge of the nearest; circuit be also disqualified, sonie other circuit shall be selected.” If the papers be transmitted to a circuit in which the judge is also interested, the latter judge cannot take jurisdiction, and he can only direct the return of the papers in order that “some other circuit shall be selected.” We are clear that this is the proper

interpretation, and it follows that the jurisdiction does not depart from the cowrt in which the suit was commenced until the cause is “ removed ” to some circuit in which the judge is qualified to try it. It also follows that the court named in the order of transfer cannot take jurisdiction and hear, try and determine a cause until the removal is effected, and this does not occur until “ the cause,” to-wit: the record, pleadings and papers, find, a lodgment in the proper clerk’s office in the proper circuit.

The theory that the jurisdiction of a cause always exists somewhere, and is never in abeyance, is certainly correct, and yet the jurisdiction of the Circuit Court over a cause may be perfect, while the power of the parties and. of the judge may be in abeyance by reason of the disqualification of the judge, until the proper steps are effectively taken and the cause removed to some circuit whereof the judge is qualified to hear it. The judge cannot know that a cause is pending in any county in his circuit except by the evidence of the clerk’s endorsement upon the papers.

Judgments and decrees can never be entered until after the filing of the pleadings with !' the clerk. We know of no mode of ascertaining whether a suit is pending anywhere, except by inspecting the records or papers in the proper clerk’s office. In the pursuit of such an inquiry, if we find no papers or record in the office showing the existence of a suit, and the clerk informs us that he knows of no such cause, it would be idle to tell us that a suit is pending in that county.

In a case like the present, how is the judge to know that a cause has been removed to his circuit, unless the certificate of the order of transfer appears in the record ? and how can he know that such an order has been, made unless he finds it in the proper office ?

The order of transfer directs, and the law requires, that all the papers be transmitted “ to the clerk of the court to which said cause may be ordered to be transferred, together with a certificate of the order of transfer.” It seems to us that the law requires that the papers be delivered into the possession of the clerk before the case is “ transferred to ” the proper court.

If a party petition for a transfer of a cause and procure the entry of the proper order, and then neglect or refuse to “ pay all costs ” as required by the law referred to, thus suspending all proceedings in that court, the clerk ean~ not be compelled to transmit the papers.

Oan it be said, in such case, that any other court has become possessed of the cause, with the power to hear and determine it ? or that, even if the costs have been paid, the court to which it may have been ordered to be sent has any power to compel the clerk to transmit the papers or to control the papers or records which have never been so transmitted to its custody ? The law in the case points out certain steps to be taken in order to effect a change of the jurisdiction from one circuit to another.

"Without the statute, there would be no power which the law could recognize to transfer the jurisdiction and confer it upon another court, and until the law is complied with in all essential particulars, the jurisdiction is not affected. We are, therefore, unable to conclude that this cause has been “ removed to ” the Circuit Court of Columbia county, or that the judge of the Third Circuit has had any control over the cause, and that the cause is yet properly pending in the Leon Circuit Court.

If the pre-requisites entitling the party to a removal are not complied with, the judge of the Second Circuit may, on the proper application, revoke the order already made, and make another order to remove the cause to a proper circuit. This conclusion is not in conflict with the decision in the case of Ammons vs. The State, 9 Fla., 530, that case depending upon another and different statute.

But whether the cause was pending in the Second or in the Third Circuit, had the judge of the Fourth Circuit any ■power or authority to entertain any application and make any order in the cause under the act of January 24, 1851 ? The ‘appellants contend that he had not, and this involves the inquiry, whether that act is in force under the constitution of 1868, or is abrogated by it ? The fourth

section of the act before quoted provides that whenever the judge of a Circuit Court shall be unable, from absence, sickness, or other cause, or shall be disqualified frompnterest, or any other cause, to discharge any duty whatever pertaining to his office which may be required to be performed in vacation, it shall be the duty of any other circuit judge, on the application of any party, to perform such duties,” &c. The constitution,

article vi.,

section 7, provides for the appointment of a judge for each circuit, who shall hold terms in each county in his circuit, and upon the order of the Chief Justice, may hold terms in any other circuit.

Section 8 provides that the Circuit Courts in the several circuits shall have original jurisdiction in cases in equity, and the judges thereof shall have power to issue all writs necessary to the complete exercise of their jurisdiction. It is urged, with much force and plausibility, that under the constitution the circuit judges can dó no act when out of their own circuits, or exercise any judicial power affecting causes pending in another circuit, except under the order of thb Chief Justice.

We must hold, however, that the provisions of the constitution shofild not be so construed as to prevent the furtherance of justice. Because the constitution does not provide for a change of venue, but does provide for the trial of causes in which a judge may be interested by a transfer of one judge to the circuit of another judge, it does not follow that the Legislature is powerless to provide for the transfer of suits from one circuit to another for special cause.

The constitution requires that an order of the Chief Justice shall he necessary to enable a judge to hold a term of court for another judge, referring to the terms of court as appointed by law. The law of 1852,

chapter 521,

section 6, requires the judges to hear and decide cases pending in equity, whenever they are in a condition to be tried, whether in vacation or in term time, and the rules of practice in suits in equity declare that the Circuit Courts, as courts of equity, shall be deemed always open for all purposes preparatory to the hearing of all causes.

It may frequently happen that circuit judges may be incapacitated for attending to business hy reason of absence or illness, or other cause, and every lawyer knows that there are emergencies in which a brief delay may he disastrous to the interests of their clients, as when a writ of injunction is necessary to prevent the destruction or injury of property, or its fraudulent transfer, or its removal, or where a writ of ne exeat may be imperatively necessary, and the like cases.

To require that an order be first obtained from the Chief Justice, or that parties should be subjected to the delay necessary to effect a change of venue, would in many cases result in the absolute defeat of justice, and the destruction of the fortunes and the cherished rights of innocent persons. Such a construction cannot be tolerated in the absence of an express provision forbidding the exercise of the necessary power by the judicial authorities.

The act of the judge of the Fourth Circuit in granting an order in a case pending in another circuit under the law referred to, in the case of the legal or physical incapacity of the judge of the latter circuit, is intended and expressly declared to be the act pro hac vice of the judge in whose stead he officiates. But it by no means follows that the law contemplates that the cause is transferred hy such an emergency to the circuit of the judge who grants an order under the circumstances mentioned.

The order so made is to be considered as the order of the court or judge having jurisdiction in the first instance, and the papers should be filed and the order entered of record in the office of the clerk of the court in which the cause was pending when the emergency occurred. ¥e hold, therefore, that the judge of the Fourth Circuit could, in a proper case, make orders in an equity suit pending in another circuit, and this brings us to the question whether his orders granting an injunction and appointing a receiver in the present case were authorized and regular under the law and the rules of practice.

The petition addressed to the judge of the Eourth Circuit, asking him to take cognizance of the case, alleges that the cause had been transferred to Columbia county, Third Circuit; but the record and papers did not show that the transfer had been completed, and he should, therefore, have declined to act, the application to him being based upon the absence from the State of the judge of the Third Circuit, who had as yet not obtained jurisdiction of the cause.

But we find, on perusing the bill of complaint, that many of its essential allegations, and particularly those which are relied upon to show the necessity for an injunction, are stated upon the information and belief of the complainants, and as to some of the allegations, it is stated that the facts are unknown to them, and they pray a discovery. There are no proofs, by deposition, affidavit, or otherwise, of the truth of these facts, beyond the ordinary jurat annexed to the bill.

Chapter 1098, Laws of 1860,

section 1, provides “ that in all suits in equity in this State, when

summary process by injunction or otherwise shall be prayed, and the bill justifies such process, and affidavit shall be made of the truth of the statements of the bill, and that the complainant is unable to give bond of indemnity or other security, the chancellor shall receive ex parte evidence of the truth of the statements of the bill and of the accompanying affidavit, and if they shall appear to be true, shall grant such process without requiring security.” Here we find no accompanying affidavit or other expa/rte proof of any fasts.

The complainants submitted an affidavit that “ they are unable to give a bond for a sufficient amount to cover the value of the property in litigation in this suit, or for the amount of receipts and earnings of the Pensacola and Georgia, and St. Marks, and Florida, Atlantic and Gulf Central Eailroad Companies,” and this is the only affidavit or proof submitted, as appears in the record. It does not comply with the law above quoted, nor does it appear what security was required by the judge, or that he required any security.

His order in the matter endorsed upon the bill simply says: “ Let injunction issue as prayed;” signed “ A. A. Knight, Judge Fourth Judicial Circuit.” It is very clear that the granting of an injunction upon this bill, 'without any accompanying affidavit or proof, and without exacting security, and without such an affidavit of inability to give “ bond of indemnitj^ or other security,” was not warranted by law. “ In

summary proceedings, where a court exercises an extraordinary power under a special statute prescribing its course, we think that course ought to be exactly observed, and those facts especially which give jurisdiction ought to appear, in order to show that its proceedings are coram, judice, otherwise the proceedings are not merely voidable, but absolutely void.” Thatcher vs. Powell, 6 Wheat., 119. This authority is but an enunciation of a well settled rule in judicial proceedings, and it is quite applicable to a part of the case already considered.

It is insisted by the appellants that notice of the applications for an injunction and the appointment of a reciver should have been given, and that it is required by the rules of the court of chancery. This is undoubtedly the general rule, but we cannot say that emergencies may not exist which will warrant the exercise of the power without notice. Yet looking at this record, it is discovered that the bill was filed in Leon county^on the 11th of August, the order of transfer was made on the 27th August, and the application to Judge Knight for his action was made on the 21st of September.

From this long delay of the complainants, it is not inferred that the emergency was so pressing as to require the appointment of a receiver and the allowance of an injunction without an attempt to serve notice upon some of the several' defendants residing within the county and city where the Judge resided, and where he granted the applications as appears in the record, and before a subpoena had Ibsen served upon any of the defendants. It is deemed unnecessary in the present aspect of this ease 'to consider the merits of the bill upon this appeal, in view ©f the conclusions already arrived at-.

The appeal is from the order and decree of the Judge of the Fourth Circuit, and these orders having been entered of record and. the papers Fled in the circuit court of Duval county in that circuit, the injunction having been issued by the Clerk of Duval, the receiver’s bond filed also in bis office, tbe amended bill entitled as of that court, and tbe complainants’ petition to Judge Knigbt being also entitled of tbe Circuit Court of Duval county.

It is deemed that the suit commenced in Leon county has never been transferred by the order of the judge of that court or of any other judge, or by operation of law, to Duval county, or any other county in his circuit, and b mot properly pending there.

The law and practice in courts of chancery are so well jfaaown, that it may be improper to consider and decide in .advance of the future action of the proper circuit court, (where the case may be presented on a different state of pleadings,) upon the merits of the bill as it now stands, nor would any opinion thereon affect tbe proceedings of the ©©art from which this appeal was taken.

It is thereupon ordered and decreed, that all and every of the orders and decrees of the Circuit Judge of the Fourth Judicial Circuit, entered in the office of the Clerk of the C&reuit Court for Duval county, in this cause, be and the same are hereby reversed and set aside, and the Jndge of the said Circuit Court is directed to cause all the papers filed in that court, which were originally filed in the office of the Clerk of the Circuit1 Court of Leon county, to be forwarded and returned to the Clerk of the Circuit Court for Leon county, including the certified copy of the order of transfer made by the Judge of the Second Circuit.