
    FREUD v. WAYNE CIRCUIT JUDGE.
    1. Trespass — Change of Venue — Construction of Statute.
    By the terms of 3 Comp. Laws, § 10316, actions for trespass on land are to be brought in the county where the land is situated. Section 10317 enacts that, when the defendant is not an actual resident of such county, the action may be prosecuted in any county where he may be found; provided that, whenever any such cause shall be pending in any circuit court other than in the county where the trespass was committed, said court “may,” on the application of either party, accompanied by an affidavit showing in what county the lands are situate, change the venue to the latter county, and “shall ” make all necessary orders for the removal, and the court to which said cause shall be so removed "shall” proceed to hear and determine the same. Held, that the provision as to change of venue is mandatory, on the situation of the land being shown.
    2. Mandamus — Vacation of Order — Practice.
    
      Mandamus will not lie to compel a circuit judge to vacate an order unless application for such relief has first been made to him.
    
      Mandamus by Leopold Freud to compel Morse Robnert, circuit judge of Wayne county, to vacate an order granting a change of venue.
    Submitted October 16, 1902.
    (Calendar No. 19,594.)
    Writ denied November 11, 1902.
    
      Keena & Lightner, for relator.
    
      James H. Lynch, for respondent.
   Montgomery, J.

The relator brought an action in trespass against Strathearn Hendrie on the 19th of April, 1902. A declaration was filed, alleging the trespass to have been committed in the county of Oakland, and issue joined. The defendant made an application to the circuit court for the county of Wayne for a change of venue to the county of Oakland. This motion was heard before respondent, and granted, on the ground that the statute (section 10217, 3 Comp. Laws) required sucb action upon showing that the trespass was committed in the county of Oakland; and the question presented by this application is whether the provisions of this section authorizing a change of venue are mandatory or permissive.

Prior to the enactment of this, section, in its original form in 1861, actions for trespass on land were local, and were brought only in the county where the trespass was alleged to have been committed. 3 Comp. Laws, § 10216; Haywood v. Johnson, 41 Mich. 604 (2 N. W. 926). In 1861, however, an act was passed providing, in effect, that “all cases of trespass on lands, and all cases of trespass upon the case for direct or consequential damages on account of injury to personal property, when the defendant is not an actual resident of the county in which such lands are situate, * * * may be prosecuted and maintained at law in any county where such defendant may be found.” This continued to be the state of the law until 1883, when by an amendment a proviso was annexed to this provision of the statute, which is now the proviso embodied in section 10217, which reads as follows:

“Provided, that, whenever any such cause shall be pending in any circuit court other than in the county where such trespass or such injury was committed, said court may, on the application of either the plaintiff or defendant therein, accompanied by an affidavit stating specifically where such lands are situate, or where such personal property was situated at the time of committing such injury, change the venue of and certify and remove said cause to the circuit court of the county where such lands are situate, or where such personal property was situated at the time of committing of such injury, and direct the issue to be there tried, and shall make all necessary x’ules and orders for the removal of said cause, and all matters relating thereto; and the circuit court to which said cause shall be so removed shall proceed to hear and determine the same, and execution may thereupon be had, in the same manner as if the same had been originally prosecuted in said court.”

It will be noted that the language of the statute is that, upon an application of either the plaintiff or defendant, the court may change the venue, and certify and remove the cause to the circuit court for the county where the lands are situate, and direct the issue to be there tried, and shall make all necessary rules and orders for the removal of the cause, and all matters relating thereto. It is the contention of the relator that the word “may” implies that the authority is permissive. While conceding that the word “may” is often held to be mandatory, it is argued that, as used in this statute, it should be held permissive.

We think otherwise. It will be noted that the word “shall” is employed when dealing with the requirement that orders and rules for the removal of the cause shall be made. But, more than this, the section provides in terms by what application and upon what showing the court may act. There is no implication that a counter showing is intended or to be permitted, and we think the legislative intent that, upon this showing being made, a transfer of the cause shall follow, is clear.

It has been held that, under section 10105 et seq., the applicant, upon showing the facts stated in the statute, is entitled of right to have the cause transferred. That statute provides by the first section that upon showing the relationship of the circuit judge, or his interest as a party, the cause may be transferred to some other circuit. It provides in the second section that the party desiring to have the cause transferred may apply to the circuit court commissioner; and by section 4 that, being satisfied of the disqualification of the circuit judge, the commissioner shall grant an order of transfer to some other county. The statute is amplified somewhat more than is that under discussion, but this proviso is that the court may, on the application of either plaintiff or defendant, transfer the cause; and, after stating what such application shall contain, it is provided that the court shall make the necessary rules and orders for the removal of the cause. The former statute has been twice before this court, and has been held to be mandatory. Pack v. Alcona Circuit Judge, 74 Mich. 28 (41 N. W. 850); Grostick v. Railroad Co., 96 Mich. 495 (56 N. W. 24). We think the proviso of section 10217 is equally so.

A question of practice is raised in the brief of counsel for respondent, which would be sufficient to dispose of the case were the point insisted upon. No application was made to the circuit judge to vacate the order in question. Proper practice requires that, before an application is made to this court, such application shall be made. However, as the case is fully briefed, and presents a question of some importance, we have thought better to dispose of it on its merits. '

The application will be denied.

Hooker, C. J., Moore and Grant, JJ., concurred.  