Barnes v. McMullins

• Decision Date: 30 April 1883
• Citation: 78 Mo. 260
• Parties: BARNES v. MCMULLINS, Appellant.
• Court: Missouri Supreme Court

78 Mo. 260

BARNES

v.MCMULLINS, Appellant.

Supreme Court of Missouri.

April Term, 1883.

[COPYRIGHT MATERIAL OMITTED]

Appeal from Livingston Circuit Court.--The case was tried before J. M. DAVIS, ESQ.. sitting as Special Judge.

REVERSED

J. J. Clark for appellant.

C. H. Mansur for respondent.

MARTIN, C.

This was an action on a negotiable promissory note, made by defendant and payable to one Robert J. Pence, in the sum of $1,236.50, and indorsed by him to plaintiff. The petition was filed on the 26th day of December, 1877.

Before making answer the defendant filed his application for a change of venue, based upon an affidavit that the judge of the court was so prejudiced against him that he could not have a fair trial. When the application came on for hearing, the court overruled it, and ordered the clerk to hold an election for the purpose of electing a special judge to try the case. This order was based upon the affidavit of the defendant, charging him with prejudice. The election was held and resulted in the election of Smith Turner, Esq., a member of the bar. After he took his seat to try the case, the defendant made another application for a change of venue, based upon another affidavit charging prejudice on the part of said Turner. Thereupon Mr. Turner refused to proceed further with the case, and resigned the position to which he had been elected. The judge of the circuit then ordered the clerk to hold another election, which was done, and James M. Davis, Esq., a member of the bar, was elected, and, as the record shows, went on to try the case, after having taken and subscribed the oath required by law. Before the trial began, defendant made another application for a change of venue, based upon another affidavit chhrging Mr. Davis with prejudice against him. This application was overruled, and the case was ordered to proceed.

The defendant had filed his answer a few days before said election, in which he admitted the execution of the note and denied all the other allegations. It then went on to say that defendant had purchased from said Robert J. Pence, the payee of the note, a stock of goods for the price of $8,000, and had paid him for them; that before the purchase said Pence represented to defendant that the goods were good and sound, and promised that if they were not sound or came short, in a fair invoice price, of the sum of $8,000, he would refund to defendant the full amount of whatever the said stock of merchandise fell short of the amount of $8,000, whether by reason of damage or lack of quantity; that defendant purchased on the faith of said representations and promises; that said Pence caused the goods to be invoiced at a price much above their real value; that said goods fell short by reason of unsound and damaged goods, more than $3,000, and in quantity more than $700; that said Pence, although requested, had failed to refund said sum or make defendant whole for the damages sustained; that well knowing defendant's claim the plaintiff had conspired with said Pence to cheat and defraud defendant, and to that end had accepted and received the note in suit without consideration, which was indorsed to him long after said Pence had been notified of defendant's demand aforesaid. It is added that said Pence is insolvent and a non-resident, and that defendant will be remediless if compelled to pay the said note; that by reason of the premises defendant has a just and equitable counter-claim against said Pence, of which plaintiff had notice before he became possessed of the note.

That part of the answer containing the equitable counter-claim was on motion stricken out.

A few days afterward an amended answer was filed containing the same matter more specifically pleaded, in which it was alleged that said Pence at the time of the sale well knew the unsound and damaged condition of the goods, and agreed to ship them to Chillicothe and re-imburse defendant for all damaged goods and refund the price of all invoices failing to reach defendant. The counter-claim as thus pleaded was stricken out the second time.

At this stage of the case the defendant, according to his statement and the bill of exceptions, abandoned the case, declining further to appear or participate in the trial, save only to object to the case being tried by the special judge. His objections were overruled and the case proceeded. A jury was sworn and evidence introduced to sustain the issues on the part of plaintiff. The defendant declined to cross-examine witnesses or participate in the trial. A judgment was rendered in favor of plaintiff in the sum of $1,516.30. The defendant seems to have re-appeared in the case and moved for a new trial and in arrest of judgment. I will now consider the material exceptions to the action of the court as presented in the record.

1. TEMPORARY JUDGE: change of venue: in civil cases.

I. It is urged by defendant that the judge of the circuit court had no authority in law to order the election of a temporary judge to try the case.

The 2nd section of the act of the general assembly relating to the election of temporary judges, approved May 19th, 1877, provides that: “If the judge is interested or related to or shall have been counsel for either party, or when the judge, if in attendance, for any reason, cannot properly preside in any cause or causes pending in such court, and the parties to such cause or causes fail to agree to select one of the attorneys of the court to preside and hold court for the trial of cause or causes, the attorneys of the court who are present, but not less in number than five, may elect one of its number then in attendance, having the qualifications of a circuit judge, to hold the court for the occasion.” Sess. Acts 1877, p. 218. The act provides that the election shall be held by the clerk of the court, and that if the person first elected to act as special judge fails or refuses to act, another election shall be held in like manner, from time to time, until a suitable person is chosen, who can and will preside.

The defendant in this case filed his application for a change of venue alleging that the judge was prejudiced, and insists that under the provisions of the stastutes relating to change of venue the court had no discretion in the matter, but was required by law to send the case to another circuit. 2 Wag. Stat., p. 1355, §§ 1, 2, 3, 4. The solution of this question involves a construction of the act of 1877, relating to temporary judges, and it is not entirely free from doubt, in my mind.

The statutes in force prior to this act allowed changes of venue on account of the interest, relationship or prejudice of the judge, and undue influence of the opposite party. The filing of the affidavit, without proof at all in support of it, rendered it compulsory upon the judge to stop all further action in the case and send it for trial elsewhere. He had no discretion in the matter when the application was in conformity with the statutes. Corpenny v. City of Sedalia, 57 Mo. 85. When the judge was interested in the cause, or was related to either party, or had been of counsel, it was obligatory on him, upon simple motion, to send the cause elsewhere for trial without application on affidavit. And in such cases he had no authority to try it without the consent of both sides. 2 Wag. Stat., 1356, § 5; Gale v. Michie, 47 Mo. 326.

It will thus be seen that a formal application upon affidavit for a change of venue on account of prejudice or undue influence, and a simple motion for a change in a case of interest or relationship of the judge, by disqualifying him for trying the case, necessarily furnished the grounds upon which a special judge is authorized to be elected under the act of 1877. The law as it stood prior to the act of 1877, compelled a change of venue when any of those disqualifications occurred. The act of 1877 authorized the election of a temporary judge when the judge had been of counsel, or was interested in the cause, or related to either party, and “when the judge, if in attendance, for any reason cannot properly preside in any cause,” and the parties fail to agree upon a special judge. The act does not specifically designate the disqualification rising from prejudice or undue influence, but it provides for an election when the judge is disabled from properly presiding for any reason. When that reason is apparent it is a matter of no consequence whether it is one of the grounds for change of venue or not. The act authorizes an election when the judge cannot preside for any reason. Now when it is spread upon the records that the judge is prejudiced or is subject to undue influence, by the affidavit of the party, which he cannot dispute or disprove, it seems to me his status toward the case is fixed. He cannot properly preside, and the election of a special judge is in order. If the election cannot take place except in the specified instances of interest, kinship or relation as counsel, then no effect would be given to the comprehensive term of “any reason.” The fact that a change of venue is provided for in the case of prejudice and undue influence, does not militate against this construction of the act, because a change of venue was also given by the statutes when the judge was related to either party or was interested in the cause. Such reasons of disqualification are undoubtedly included in the act of 1877. In all cases in which the judge is prevented from properly presiding by reason of disqualifications pertaining to himself, whatever may be their character, the act of 1877 seems to permit the selection of a special judge.

I do not think the court would have erred if a change of venue had been granted upon the formal application of defendant, because the act does not, like the act relating to criminal cases, forbid a change of venue. Sess. Acts 1877, p. 357. The language of the act of 1877 relating to civil cases does not seem to command the selection of a special judge...