Stearns v. St. Louis & S. F. Ry. Co.

• Decision Date: 05 March 1888
• Citation: 94 Mo. 317,7 S.W. 270
• Court: Missouri Supreme Court
• Parties: STEARNS v. ST. LOUIS & S. F. RY. CO.

7 S.W. 270

94 Mo. 317

STEARNS v. ST. LOUIS & S. F. RY. CO.

Supreme Court of Missouri.

March 5, 1888.

VENUE IN CIVIL CASES — CHANGE OF — APPLICATION — REQUISITES.

A change of venue, without the verified petition therefor, required by statute in Missouri, in cases where the ground therefor is not disability or disqualification of the judge, is not such an error as will make the judgment void and the subject of collateral attack, in the absence of fraud.

Error to circuit court, Greene county; W. F. GEIGER, Judge.

This was a proceeding instituted in the circuit court of Greene county, by Frank B. Stearns against the St. Louis & San Francisco Railway Company, to set aside a certain judgment, formerly entered in that court in favor of the present defendant against this plaintiff. The defendant demurred to the petition, and, the demurrer being sustained, judgment was entered in favor of the defendant, and the plaintiff brings the case here. The facts as alleged in the petition, and admitted by the demurrer, are as follows: The present defendant instituted a suit as plaintiff against this plaintiff as defendant, in the circuit court of Newton county, to foreclose this plaintiff's equity in certain real estate situated wholly in Newton county. This plaintiff appeared, and filed an answer as defendant in the Newton circuit court. The defendant, as plaintiff in that case, then filed a motion to strike out part of that answer. Without any further action being taken in the Newton circuit court, an order was made awarding the venue of that case to the circuit court of Greene county. It is expressly alleged in the petition that that change of venue was not made, or pretended to be, on account of any interest or disqualification whatever of the judge of the Newton circuit court, and was made without any petition or application having been filed therefor by either party, and without any agreement or consent in writing having been filed in the cause. When the case reached the circuit court of Greene county, this plaintiff appeared there for the sole purpose of a motion, which he filed, to dismiss the cause from the Greene circuit court, because it had acquired and had no jurisdiction over the parties or the subject-matter of the suit, and because there had been no lawful change of the venue of the case. The circuit court of Greene county refusing to dismiss the case or to remand it, the plaintiff made no further appearance. Afterwards, the circuit court of Greene proceeded to enter a judgment in favor of this defendant against this plaintiff, and it is that judgment which it is sought to have set aside by this proceeding. The petition further alleges that this defendant is using that judgment, beyond the control and jurisdiction of the courts of the state, to harass and annoy this plaintiff. The plaintiff contends that he was entitled to a trial upon the petition, and that, if the allegations were sustained, he was entitled to a judgment declaring the former judgment of the circuit court of Greene county to be a nullity, and, because he was denied such trial upon the merits, he asks a reversal of the case.

Geo. P. B. Jackson, for plaintiff in error. John O'Day and E. D. Kenna, for defendant in error.

BLACK, J.

This case is here on a writ of error sued out by the plaintiff to review the action of the Greene county circuit court in sustaining a demurrer to the petition. The petition discloses these facts, — we must take them as facts: On the 5th December, 1877, the railroad company, the defendant in this suit, commenced an action in the Newton county circuit court against Frank B. Stearns, the plaintiff in this suit, to recover a large sum of money, and to foreclose his equity of redemption in some 8,000 acres of lands and lots, all situated in that county. 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...