Opinion by

It was error on the part of the Shelby Circuit Court to change the venue of this cause until there had been a failure to obtain a special judge in either of the modes prescribed by law, i. e., by agreement of the parties, or by an election by the members of the bar in attendance upon the court. Smith v. Blakeman, 8 Bush 476.

It was also error on the part of the Henry Circuit Court to overrule the motion to remand the case.

This case differs from that of Brown & Whittaker v. Epperson in this: The appellant excepted to the action of the Shelby court *7in changing the venue, and moved the Henry Court to remand the case, and excepted to its order overruling that motion.

For these reasons the judgment must be reversed. The cause is remanded with instructions to the Henry Circuit Court to remand it to Shelby County.

In the last named court appellant may tender his amended petition, and it will be proper to consider the question of law arising on the facts as therein alleged as though it had not been offered in the Henry Court.