¶1 On Petition eor Rehearing
¶2 The petition for a rehearing has been carefully considered and cannot be granted. No points have been overlooked or misapprehended by the Court. On the contrary the points set forth in the petition have all been considered and expressly decided against the respondent by this Court in the opinion filed.
¶3 Ordered that the petition for a rehearing be and hereby is refused.
¶4 The reasons for refusing the petition are:
¶5 Respondent now relies on the case of Cromer v. Watson, 59 S. C., 488, 38 S. E., 126. In respondent’s original printed argument it is said by respondent that :
¶6 “The party must make the affidavit himself. Cromer v. Watson, 59 S. C., 488, 38 S. E., 126.
¶7 “In this last mentioned case the attorney made the affidavit and the Court held it had to be made by the party himself and that all proceedings before the magistrate to whom it was removed were utterly void because he had no jurisdiction.”
¶8 In the case of Cromer v. Watson, 59 S. C., 488, 38 S. E., 126, it appears therein (page 127) : “Defendant’s attorney, on his own affidavit alone, moved for a change of venue, which [Magistrate Coleman] granted, and ordered the cause before Magistrate Buzhardt. Under protest of plaintiff, Magistrate Buzhardt tried the cause, and gave judgment for defendant. Thereupon an appeal was taken, *132 when Judge Gary ordered the trial before Judge Buzhardt set aside, and adjudged the affidavit of defendant’s attorney insufficient, and also ordered the cause back to Magistrate Coleman for trial.”
¶9 In that case the plaintiff did not sit idly by and participate in the trial, but protested, and appealed to the Circuit Court, who reversed the magistrate and ordered the judgment set aside. On appeal to the Supreme Court on this point by the defendant, this Court refused to sustain the exception that “[the Circuit Judge] erred in setting aside the judgment of Magistrate Buzhardt in the premises, and remanding the cause to Magistrate Coleman [for trial].”
¶10 This Court said, “we cannot sustain [this] exception, because the moment the Circuit Judge held that the venue had not properly been changed from Coleman to Buzhardt, the latter had not jurisdiction, and, when no jurisdiction was in Magistrate Buzhardt to hear and determine the action, his judgment without having jurisdiction was a nullity.”
¶11 The respondent has not followed the law as laid down in the Cromer v. Watson case, and cannot complain. The respondent did not protest, but participated in the hearing before Magistrate Harrelson. No appeal was taken by the State, from the order of Magistrate Grantham for the removal of the preliminary. No Circuit Court has held that the venue had not been properly changed in the case of State v. DeWitt Clemmons, and the order for the change has not been reversed or set aside or assailed directly in that case in any way.
¶12 It is elementary that, the judgment discharging the accused stands, if no appeal or objection was made thereto.
¶13 It is also elementary that if an appeal had been taken and sustained then “the moment the Circuit Judge held that the venue had not been properly changed from one magistrate to another the latter had no jurisdiction and his subsequent judgment was a nullity.”
¶14*133 It is also elementary that in the absence of an appeal to the Circuit Court the judgment of the magistrate is valid and the Circuit Court without jurisdiction to set it aside.
¶15 Respondent overlooks the fact that the Circuit Court on appeal in due time reversed the magistrate and from that moment the proceeding before the magistrate became a nullity, because the Circuit Court held that he had no jurisdiction.
¶16 When a case properly arises the law of Cromer v. Watson will, of course, be followed, and it is unnecessary to so inform the attorneys.