State ex rel. Herriford v. McKee
| Decision Date | 30 May 1899 |
| Citation | 51 S.W. 421,150 Mo. 233 |
| Parties | State ex rel. Herriford v. McKee, Circuit Judge |
| Court | Missouri Supreme Court |
Peremptory writ denied.
D. A Rouner and O. D. Jones for relator.
The Supreme Court said in State ex rel. v. Bacon, 107 Mo. 631, "We have come to the conclusion that the proviso in section 2262 has deprived circuit judges of all discretion and that no order for change of venue can be made until after 'reasonable opportunity' for holding an election has been given." The clause quoted on page 632 of the opinion, remains in substance in section 2262 as amended. (Page 93, Laws 1895 Mo.) It is, "And provided further that when the application is founded on the interest prejudice or other objections to the judge, a change of venue shall not be awarded to another county if the parties shall thereupon agree upon a special judge, or if both parties request the election of a special judge." If the parties do so agree no change from the county can be made. Their failure to agree is made a condition precedent, a jurisdictional fact, to the exercise of the judicial act of making the order changing the venue to another county. Just as well dispense with any other fact, such as the presentation of a sufficient application. Change of venue like that of appeal, is a statutory right and no presumptions are entertained one way or the other as to the jurisdictional facts as in other cases of trial courts.
J. M. Jayne and C. D. Stewart for respondent.
In Banc.
Mandamus.
This proceeding questions the correctness of the action of Judge McKee in awarding a change of venue from the circuit court of Knox county to that of Schuyler county.
The petition for the alternative writ, among other things in substance and form alleges the presentation of the application upon due notice given, "based alone on the ground of the prejudice and disqualification of the judge," etc., whereupon the respondent judge "immediately awarded the venue to the circuit court of Schuyler county, Missouri, without asking the parties whether they could or would agree on a special judge to try the cause, or whether both parties would consent to the election of attorney at the bar, present at an election to be held by the clerk, as provided by law; and failed and refused to enter on the record preceding the awarding of the change of the venue to Schuyler county the truth and the fact as to said agreement or failure of the parties to agree as aforesaid." The petition then alleges the sending by the clerk of the Knox circuit court of the transcript, etc., to the clerk of the Schuyler circuit court; that when the cause came on to be heard at the next term of the latter court it was then and there held by that court that no jurisdiction had been acquired by that court, "because of the failure of the judge of the Knox circuit court to afford the parties an opportunity to choose a special judge, or to agree to choose an attorney of the bar to be elected according to law, and as provided by law, and because of the silence of the record on those facts and subjects it failed to appear and show that the Schuyler circuit court had jurisdiction of the cause."
Thereupon the judge of the court last mentioned, directed the clerk of his court to certify the cause back to the court from whence it came, and this was done. When the Knox circuit court convened at its next term, the defendant in the cause moved the court by written motion, to strike the same from the docket. Plaintiff thereupon (relator herein) called the attention of the judge of the Knox circuit court to the ruling of the Schuyler circuit court, and also moved the court by written motion to proceed and ascertain whether the parties could or would agree on a special judge, etc., but the judge denied the motion of plaintiff and then and there made an order striking the cause from the docket, and would not reinstate the same.
The respondent judge, waiving the issuance of the alternative writ, appeared and filed answer in which he admits most of the allegations of the petition and then specifically states: "Admits that he granted a change of venue without asking the parties whether they could or would agree on a special judge to try the cause, or whether both parties would consent to the election of an attorney of the bar present at an election to be held by the clerk. Admits that the clerk of the Knox circuit court, as commanded, made out and sent to the office of the clerk of the circuit court of Schuyler county a complete transcript of the record and the original papers in the cause and the ten dollars filing fee required by law, and sent the same to said clerk of said Schuyler county. Admits that at the May term, 1898, of the Schuyler county circuit court, then and there held that the circuit judge thereof held that he did not have jurisdiction of said cause; but for what cause said court did not have jurisdiction of said cause this respondent does not know nor can he state; nor does he know the reason or reasons said court assigned for it not having jurisdiction of said cause, and for it directing the clerk of said court to certify said cause back to the circuit court of Knox county. Admits that the defendant in said cause at the June term of the Knox circuit court, 1898, filed a motion in said court before the Hon. Ed. R. McKee, judge, moving and asking him to strike said cause from the docket of said court, a copy of said motion so filed and duly certified to by the clerk, is hereto attached and marked "Exhibit D." Admits that thereupon the plaintiff called this respondent's attention to the ruling of the circuit court of Schuyler county in this action and claiming that the Knox circuit court should proceed and ascertain whether the parties could or would agree on a special judge or whether they would consent to the election of a lawyer by the members of the bar present to try the cause. Admits that he sustained defendant's motion and struck said cause from the docket. Admits that during the said last mentioned term of said Knox circuit court the plaintiff filed her motion to reinstate said cause on the docket of said court, and that this motion the court refused to sustain.
1. Ever since Potter v. Adams', 24 Mo. 159, it has been the settled doctrine of this court that the only way to remedy the improper awarding of a change of venue is by saving exceptions at the time the change is ordered and in the court in which ordered. [State v. Knight, 61 Mo. 373; State v. Dodson, 72 Mo. 283; Squires v. Chillicothe, 89 Mo. 226, 1 S.W. 23; Keen v. Schnedler, 92 Mo. 516, 2 S.W. 312; Stearns v. Railroad, 94 Mo. 317, 7 S.W. 270.] There is no pretence that exceptions were saved in the manner aforesaid, when the change was ordered.
In the case last cited, it was sought by plaintiffs by bill in equity to have declared null and void a decree entered in favor of the railroad company and against Stearns for the recovery of a large sum of money and the foreclosure of his equity of redemption in some 8,000 acres of land. Stearns appeared and filed an answer, and the plaintiff moved to strike out a part thereof. Thereafter, and at the August term, 1878, the Newton circuit court made an order changing the venue of the cause to the Greene county circuit court. This order, it is alleged, "was made without, and not founded upon, or pretended to be founded upon, any disability or disqualification of the judge of said Newton circuit court, on account of his being interested in, or related to, either party, or by having been of counsel in said case, and without any application having been made therefor by either party to said cause, and without any consent of the parties in writing being filed in said Newton circuit court, as provided and required by law." The Greene circuit court, upon the filing of the transcript therein, took cognizance of the cause, and sustained the motion to strike out part of the answer. Stearns appeared in that court for the special purpose of making a motion to strike the cause from the docket for want of jurisdiction of that court. This motion being overruled, he made no further appearance, and thereafter the court rendered a judgment and decree in conformity to the prayer of the petition.
To a petition filed in the Greene circuit court alleging the foregoing facts, as placed in quotations, the defendant successfully demurred, and final judgment went on the demurrer. After discussing the case thus stated, and commenting on the authorities already cited, it is said ...
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