¶1ON REHEARING.
¶2Opinion delivered February 15, 1909.
¶3Appellant insists that the statutes of this State authorize a transfer of a case from the circuit court to the chancery court, or vice versa, by the plaintiff before the answer of the defendant is filed, without an order of the court directing the transfer.
¶4The statutes relied on are as follows:
“Section 5991. An error of the plaintiff as to the kind of proceedings adopted shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings by an amendment in the pleadings and a transfer of the action to the proper docket.
“Section 5992. The error mentioned in the last section may be corrected by the plaintiff without motion at any time before the defendant has answered, or afterward on motion in court.” Kirby’s Digest.
¶5We do not think that it was ever intended that the above quoted statute should authorize the plaintiff to transfer an action without an order of the court. The correction to be made by the plaintiff, provided for in section 5992, means an amendment to the pleadings, and does not refer to the act of ordering the transfer. That must be done by the court, and the court in which the action was originally brought retains it until the transfer is ordered.
¶6But, even if the statute could be construed as meaning what appellant contends, the separation of chancery courts from circuit courts abrogated the statute to that extent. It is absolutely inconsistent with the orderly proceedings • of these courts that, after an action has been regularly instituted in one of them, it should be transferred to -the other by the act of the plaintiff except by a dismissal of the action and commencement of a new one.
¶7The Legislature in 1893, enacted a statute providing that “in cases required by law to be transferred from or to the law side of the circuit court such cases shall be transferred from the circuit court to the chancery court, and from the chancery court to the circuit court in counties wherein chancery courts are established.” Kirby’s Digest, § 1282.
¶8This statute must, we think, be construed to mean that in all cases where under former statutes it was' proper to transfer from the court to the other the right to transfer should exist, and that the proper court should order the transfer; not that the plaintiff could move the case from one court to the other at will.
¶9Rehearing denied.