
    Archibald L. Darby, Appellant, vs. William J. Stark, Respondent.
    J. Venue, change of — Application for at close of term. — An application for1 change of venue, left undisposed of*at the end of the term, is simply continued, and may be taken up and passed on at the next term. A new application is unnecessary.
    
      Appeal from. Clay Circuit Court.
    
    
      A. W. Doniphan, E. H. JYorton, and Samuel Hardwick, for Appellant,
    cited Freleigh vs. The State, 8 Mo., 606 ; Gale vs. Michel, 47 Mo., 326 ; State ex rel. Duncan vs. Price, 38 Mo., 382.
    
      J. E. Merryman and J. F. Harwood, for Eespondent,
    cited Jenkins vs. Hill,'57 Mo., 1 22 ; Oorpenny vs. Sedalia, 57 Mo., .88 ; Wagn. Stat., 1355 ; Perry vs. Eoberts, 17 Mo., 36.
   Wagner, Judge,

delivered the opinion of the court.

Upon the petition of the plaintiff, a temporary injiinction was granted to restrain the defendant from cutting and taking away timber from certain premises, the title to which was in litigation. On the last day of the term plaintiff made his application for a change of venue, on the ground, that the judge was prejudiced against him. No action was taken upon this application, and the court adjourned till'the next regular term.

At the succeeding term plaintiff called up his motion for a change of venue, and defendant interposed the objection that the same was filed at the last term of the court, and could not be heard at a subsequent term. This objection was sustained and the application denied, the court giving as a reason that it was filed at a previous term of the court, and not taken up till the next succeeding term. Thereupon, the court proceeded to dissolve the injunction and assess damages agains' the plaintiff.

There is no objection made that the application to tin first term was irregular or out of time, but the decision waa based apparently7 upon the ground that as it was not detei mined at that term, it was of no further effect, and that an the second term it was necessary7 to give a new notice, in\ upon an original proceeding. But this, we think, is a mi a-take. When the court adjourned, leaving the application pending and undecided, it was simjfiy continued, and. lili* all other questions in the cause, liable to the future actio/i and decision of the court. At the next term, when it wui called up, it was a proceeding pending, and to be determine¿I, in the same manner as any other-preliminary question. Whin1) the application was filed on the last day, the party was ia court for that purpose, and the adjournment of the court, without taking any action upon the application, did not pvt him out of court, but simply7 operated as a postponement of the decision till another term.

The court, therefore, erred, and its judgment will be reversed and the cause remanded ;

all the judges concur.  