
    BYRNE vs. THE BOARD OF PRESIDENT AND DIRECTORS OF THE ST. LOUIS PUBLIC SCHOOLS.
    To entitle a party, in civil suits, to a change of venue, he must give to the adverse party reasonanotice of his application.
    ERROR TO ST. LOUIS CIRCUIT COURT.
    Leslie & Lord for plaintiff in error.
    1st. The court erred in not granting a change of venue.
    2d. The court erred in overruling the motion to restore Evans to possession of the land, from which his tenants other than the defendant were removed.
    1st. The statutes authorize and require a change of venue upon proper application being made. R. S. sec. 1 ¡¡ 2 p. 1072.
    The petition was sufficient, and in the form required by. law.
    The objection made and sustained by the court below, was, that the petition covered too much ground, as it staled that the same cause existed in St. Charles county. Rev. S. sec. 3 p. 1072, requires that a change of venue shall be to some court “ where the causes complained of do not ■exist,” &c., &c. The object of the statement was to show that the same cause did exist in .another county.
    The petition was not insufficient because too large. The change of venue should have been awarded.
    2d. It was error to refuse to restore possession of so much land as the plaintiff in error was not in possession of when suit was brought. 5 Cowen 418; 3 Cowen 291; Tillinghast’s Adams ten ejectment p. 341 & notes; 1 Burrow 629; 3 Wilson 49; 3 Rand. Rep. 465; 5 Taunt. 205.
    R. M. Field, for defendant in error.
    ,1st. There was no error in overruling the moiion for a change of venüé. 1st. For ho <$rea•jonable notice^5 and m notice at all of the motion was given to the adverse party, and the court below was bound to overrule the motion. Statutes of 1845 p. 1072 sec. 3. 2d. The petition is not conformable to the statute, as it embraces ft. Charles county as well as St. Louis. If the court were to sanction a petition like the present, a defendant rni&ht go farther, and put in every county in the State, and the suit must then fall to the ground for the want of a forum competent to try it.
    2d. There was no error in refusing a new trial.
    1st. No exception in this respect was saved.
    2d. The grounds disclosed were not sufficient to call for a new trial.
   Judge Birch

delivered the opinion of the court

This was an action of ejectment commenced against the defendant by the board of president and directors of the St. Louis public schools, to recover the possession of certain lands in the city of St. Louis, to which the defendant pleaded not guilty.

At the trial term the defendant applied for a change of venue, by petition duly verified, alleging that the plaintiff had an undue influence over the inhabitants of St. Louis county, which the court refused—the record alleging as the reason given by the judge, “that the petition was insufficient. Judgment was subsequently rendered in- favor of the board, and a recovery awarded conformably with the finding of the jury, for the land described in the declaration. After issuing the habere facias possessionem, a motion was made to set it aside, and restore one Augustus H. Evans to all the lands from which his alleged tenants, other than the defendant, had been ousted under said writ. This motion was founded on two affidavits—one made by the defendant Byrne, and the other by the said Evans, in both of which it was alleged that Byrne was the tenant of Evans, and had only had possession of sixteen feet of the lot of land in question ; and that other tenants of Evans’ were in possession of portions of the remainder. The affidavits further alledge that there had been no proof on the trial that the defendant was in possession of more than sixteen feet of said land, and insinuated collusion between the board or their agent, and other tenants of Evans.

For refusing to change the venue, or set aside the writ of possession, the cause has been brought here. The point first raised m.ay be decided by referring to the third section of the act providing for the change of venue in civil cases. It enacts that “ if reasonable notice be given to the adverse party or his attorney, the court shall hear th.e case,” &c., whereas the petition upon which this application was founded, was filed and decided against on the same day of the term. There was, therefore, not even a constructive notice, if, indeed, such an one could be held to be compliant with the spirit of the statute-, and the record is. silent as to any other. It is argued, however, that as the judge seems to have “heard the case,” the legal presumption should attach that the court did its duty—that is to say, that notice was either waived or given beforehand. This assumption wag further enforced in the argument of ■the counsel for the plaintiff in error, by recurring to the terms of the decision, as rendered by the judge and preserved in the record, declaring, “by its opinion and decision, thp said petition to be insufficient.” What considerations, if any, existed in the mind of the court for employing the terms it did in overruling the motion, it is deemed unnecessary to discuss. At the worst the judge rendered an unnecessary reason for a correct decision. As to the legal presumption insisted upon, and which is ordinarily true, in courtesy and in law, there stands opposed, in this case, a more unyielding and all pervading principle of jurisprudence, which is, that where a party is specifically required to do an act, he is held even to strictness in showing that he did it.

Concerning the last point, we perceive no error. The jury having found the facts as alleged in the declaration, and the judgment being in conformity witl^ the finding, the plaintiff was entitled to his writ of possession, and to have modified it, or set it aside, upon such motions as were subsequently made, unsupported by a particle of additional testimony of any kind, would have been as it seems to us, even beyond legitimate discretion of the judge, and a just pause of complaint by the plaintiff below.

No substantial error, therefore, being perceived in the record before qs, the judgment of the circuit court is affirmed.  