Swepson et al. vs. Call and Baker-Argument of Counsel.

It is not denied that the papers were lawfully taken from the file of Leon county, and went before his honor, Judge White, and that on examining the case, Judge White declining to act, made the proper order to transfer the papers to Columbia.

It further appears from the papers, that the Clerk of Leon county acknowledges the payment of costs, and made and forwarded a certified copy of the order of transfer as required by statute.

It is objected that the Clerk of Leon did not send the bill to the Clerk of Columbia county, and could not do so because the complainants did not return the bill to his office, and he was not able to forward it to the Clerk of Columbia county.

The statute does not prescribe the mode of sending papers to the clerks of circuit courts to which a cause may be transferred. The 3d section of the act makes it the duty of the clerk "on removal of a cause to send all papers in his office," &c., showing that the order removes the cause, not the forwarding of papers by the clerk.

The order of Judge White removed the cause from Leon county, 2d circuit, eo instanti; the jurisdiction of the court ceased and determined, and rested in the circuit court of Columbia county; it could not be held in abeyance. Ammon vs. State, 9 Fla. 330.

It has been contended that the ruling in that case does not apply, because there the court adjourned and could not make any order, and jurisdiction could not be held in abeyance.

In this case the same reasoning will apply; hence the judge having made the order admitting his interests, his jurisdiction and authority over the case ceased, because by law he could have made no other legal or valid order in the case.

The mode of transfer of papers given in statute is merely directory to the clerk, and requires of him the performance of a duty to secure a certain end; the intention of the law

Swepson et al. vs. Call and Baker-Argument of Counsel.

is complied with when the papers are transferred or carried before the proper court. They are directed usually to the clerk, not to give jurisdiction of the case but for convenience and safe keeping of the papers.

A refiling of the papers in the court to where they are transferred is not necessary—is not required by any statute law, and has not been usual in the practice of this State: only one formal filing is required. 9 Fla. 250.

It was not necessary under the statute to file the papers in Columbia county. The papers in this case were transferred by the presumed assent of the Clerk of Leon county, through one of the complainants. This is shown by the certificate of clerk, of copy of order of Judge White, together with other papers filed with him, sent to care of complainants, and his excuse for not sending them sooner.

The affidavit of complainants shows that having the papers in their possession, thus by assent of the Clerk of Leon county, they applied to Hon. A. A. Knight, Judge of the 4th circuit court, to hear the said cause on the ground that Hon. T. T. Long, Judge of the 3d circuit, was absent from the State. Thus Judge Knight took jurisdiction of said cause under the 4th section of the act, Jan. 24, 1851, p. 124.

That such act was intended for relief in such cases, as shown by its very title, "An Act to provide for the more speedy administration of justice;" that section authorizing the judge in such cases, on the application of any party, to hear and determine such motions as may be submitted to him, and may discharge said duties in his own or any other circuit, and shall be substituted in all respects in place of judge disqualified.

Under this act, the Judge may perform the duties in his circuit. If he does so, he must take full jurisdiction of the case. If he goes out of his circuit, when he decides the papers are properly before him, he takes general jurisdiction of the cause, and is substituted in all respects, even as to

Swepson et al. vs. Call and Baker-Argument of Counsel.

jurisdiction, in place of the judge disqualified, and the papers are then fully and properly before his court.

The jurisdiction of circuit court judges is general; the limits provided in fixing different circuits are from covenience and economy, intended to aid and facilitate justice, not to retard and defeat it; therefore, laws fixing such limits, as well as those authorising transfers of causes, should be liberally construed to promote speedy trials and hearings and secure relief.

It is urged that if the case was pending in Columbia county, there was no order of transfer to Duval. The judge being absent, no order could be obtained, and under the 4th section no order is required to authorize a judge to act for one absent or disqualified. The application of one of the parties, "of any party." as in this case was done, is sufficient to authorize the judge to act and assume jurisdiction. The papers being in possession of the complainants and they finding the judge absent, it was not necessary to file the papers in Columbia county, which might cause difficulty or delay. They were authorized to make application to Judge Knight under provision of section 4 of said act for relief; they could have presented the case before Judge Long, if present, without formally filing the papers.

The objections made to the jurisdiction are purely technical, and involve questions of form, and not of substance. The spirit and interest of the law have been fully complied with, and surely, the courts of the State will not be used to defeat great interests and rights, when no question of merit is involved or raised, merely on a formal technicality. De minimis lex non curat.

The question of jurisdiction cannot be raised by new motions as in this case. The defence that another court of equity has jurisdiction, should be taken by demurrer if the cause appears on the face of the bill, or by plea, if it does not. Story's Eq. Pl'dg, 488; Daniel's Chan'y, 578. The judge of the 4th judicial circuit as soon as the papers were

Swepson et al. vs. Call and Baker-Opinion of Court.

filed in his court, had original jurisdiction of the cause, because the bill shows that most of the defendants reside in that circuit. The property not being within his jurisdiction, is no bar to proceedings in equity; the court of equity acts upon the person when within its jurisdiction.

The

The papers in this case are regularly filed by the Clerk of Duval Circuit Court-the amendment of bill was a right of course. It does not appear that any copy had been taken. of the bill, and no evidence of appearance or answer. case could not have been heard by Judge Long, (being absent.) There was no authority to return them to Leon county, as the judge of that court had lost all control of the case. Jurisdiction had gone from him; the case was therefore, either properly brought before Judge Knight under section 4 of said act, or in absence of any one qualified to try the case, Judge Knight had a right to assume original jurisdiction.

WESCOTT, J., being disqualified, did not sit in the cause. RANDALL, 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, Franklin Dibble, M. S. Littlefield, J. P. Sanderson, Edward M. Cheney, Alonzo Huling, John L. ReQua, Silas L. Niblack, 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 in junction prayed for in said bill, and your honor having refused to entertain or hear said motion on the ground of

Swepson et al. vs. Call and Baker-Opinion of Court.

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