Browder v. Milla

• Decision Date: 04 December 1956
• Docket Number: No. 29350,29350
• Citation: 296 S.W.2d 502
• Parties: Henry BROWDER (Plaintiff), Respondent, v. James E. MILLA (Defendant), Appellant.
• Court: Missouri Court of Appeals

Page 502

296 S.W.2d 502

Henry BROWDER (Plaintiff), Respondent, v. James E. MILLA (Defendant), Appellant.

No. 29350.

St. Louis Court of Appeals, Missouri.

Dec. 4, 1956.

Robert G. McClintock, St. Louis, for appellant.

Thurman, Nixon & Blackwell, Jeremiah Nixon, Hillsboro, for respondent.

ELMO B. HUNTER, Special Judge.

This is an appeal by defendant (appellant) from a judgment for plaintiff (respondent) against defendant in the resultant sum of $1,924. The cause was tried to the court, as a jury waived case, on issues formed by plaintiff's first amended petition, defendant's answer and first amended counterclaim, and plaintiff's amended reply to defendant's answer and first amended counterclaim. Plaintiff had sued to recover $2,232.91 under a written contract between the parties relating to the operation of defendant's farm by plaintiff. Defendant had counterclaimed for $4,188.75. The trial court found in favor of plaintiff on plaintiff's first amended petition in the sum of $2,049, and on Counts I, III and IV of defendant's first amended counterclaim. Defendant received a judgment of $125 on Count II of his amended counterclaim. Defendant complains of those findings adverse to him, and also insists that the trial court erred in denying his application for a change of venue based on the alleged prejudice of the trial judge.

Defendant, James E. Milla, owned a farm in Jefferson County, Missouri, and for several years plaintiff, Henry Browder, had been a hired hand on it. On March 1, 1953, they entered into a written contract, in which plaintiff was designated as employee and defendant as employer. The contract provided, among other things, that plaintiff was to manage and operate the farm for compensation consisting of a stated percentage (45%) of the gross sales of dairy products and all future increases of the employer's livestock then on the farm, and other items, and 45% of the feed on hand and unused at the termination of the contract. The contract was terminated on December 15, 1953, by defendant by proper notice. The parties were unable to settle their numerous claims, and this suit resulted.

Plaintiff filed a written motion with this court requesting that defendant's appeal be dismissed or the judgment of the lower court be affirmed for failure of defendant to comply with Section 1.08, Rules of the Supreme Court, 42 V.A.M.S., by not making a fair and concise statement of the facts without argument in his brief. We have taken this motion with the case. There is some merit in plaintiff's motion. We have broad discretion in such matters. Vest v. Bialson, Mo.Sup., 293 S.W.2d 369. We exercise it on this occasion in defendant's favor with the suggestion that in the future greater care be taken to comply with the rule in order to avoid the unnecessary risk of having an appeal dismissed. The motion to dismiss defendant's appeal is overruled.

This being a jury waived case, our duty is to review it upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Section 510.310 RSMo 1949, V.A.M.S.; Murray v. Murray, Mo.Sup., 293 S.W.2d 436; Parks v. Thompson, Mo.Sup., 285 S.W.2d 687. The question for our determination is not merely one of whether the trial court's findings were supported by substantial evidence, but rather it is our duty to make our own independent findings of fact and reach our own conclusions as to where the weight of the competent evidence lies. Whatever findings the lower court may have made are in no sense binding on us, although in matters where the evidence is conflicting and close, we shall have due regard for the lower court's opportunity to judge the credibility of the witnesses. This is the established procedure in reviewing suits in equity. Our final duty is to affirm the judgment below or enter or direct such judgment as justice requires. Parks v. Thompson, supra; Faire v. Burke, 363 Mo. 562, 252 S.W.2d 289; Minor v. Lillard, Mo.Sup., 289 S.W.2d 1; Cross v. Gimlin, Mo.Sup., 256 S.W.2d 812; Dye v. School District No. 32 of Pulaski County, 355 Mo. 231, 195 S.W.2d 874; Lynn v. Coates, Mo.Sup., 142 S.W.2d 1014; Lastofka v. Lastofka, 339 Mo. 770, 99 S.W.2d 46.

We first consider defendant's contention that the trial court erred in denying his application for a change of venue because of the alleged prejudice of the judge. On Tuesday morning, February 22, 1955, the trial of this case began. After certain stipulations of fact were made and after considerable evidence had been presented on behalf of plaintiff but before plaintiff's case was completed, the trial judge requested the attorneys and the parties to retire from the courtroom for a conference on the matter. The court reporter apparently did not attend this conference. While we are without any exact report as to what occurred, we know that during this conference defendant's attorney through questions and answers related to the trial judge about what his defense would show. Apparently the trial judge's reaction to the outlined proposed defense, and to other discussion that occurred there concerning the case, caused the defendant to believe that the trial judge was prejudiced. After the conference the trial continued the remainder of Monday afternoon during which time plaintiff completed his case and defendant put on his first witness. The trial was then adjourned to the following Friday morning.

On Thursday, February 24, 1955, defendant filed his application for change of venue charging that the trial judge 'is prejudiced against the defendant, James E. Milla.' On Friday morning, February 25, defendant's counsel, pursuant to notice given by him, called up for hearing his petition for change of venue and presented both it and his affidavit in support thereof. The trial judge denied it as coming too late.

Defendant claims that the first time he knew the trial judge was prejudiced was on the occasion of the mentioned conference, and as he had applied for a change of venue within five days of such knowledge first coming to him he was entitled to the change of venue as a matter of right. Plaintiff claims the application was not timely, having been made after the trial commenced, and was properly refused.

The right to a change of venue is not a constitutional right, but is rather a statutory privilege and does not exist except as provided by statute. State ex rel. Dilliner v. Cummins, 338 Mo. 609, 92 S.W.2d 605; Graves v. Davidson, 334 Mo. 882, 68 S.W.2d 711; State ex rel. State Highway Commission of Missouri v. Hartman, 226 Mo.App. 604, 44 S.W.2d 169

The primary rule of construction of a statute is to ascertain the law maker's intent from the words used, if possible, and to put upon the language of the legislature, honestly and faithfully, its plain and rational meaning and to promote its object. The manifest purpose of the statute, considered historically, is properly given consideration. A. P. Green Fire Brick Co. v. Missouri State Tax Commission, Mo.Sup., 277 S.W.2d 544; Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920; Producers Produce Co. v. Industrial Commission of Missouri, Division of Employment Security, Mo.App., 281 S.W.2d 619; Haynes v. Unemployment Compensation Commission, 353 Mo. 540, 183 S.W.2d 77. Certainly the law favors a construction of a statute which will harmonize with reason and which tends to avoid unjust, absurd, unreasonable or oppressive results. Laclede Gas Co. v. City of St. Louis, 363 Mo. 842, 253 S.W.2d 832; Ellis v. State Department of Public Health and Welfare, Mo.App., 277 S.W.2d 331, affirmed 285 S.W.2d 634; Kansas City v. Travelers Insurance Co., Mo.App., 284 S.W.2d 874.

The applicable statute provides that: 'No defendant shall be allowed a change of venue unless the application therefor be made before the filing of his answer to the merits, except when the cause for such change of venue shall arise, or information or knowledge of the existence thereof shall first come to him, after the filing of such answer, in which case such application shall state the time when the cause arose, or when applicant acquired information and knowledge thereof, and the application must be made within five days thereafter.' Section 508.120 RSMo 1949, V.A.M.S. See also Supreme Court Rule 3.20.

Section 508.090 RSMo 1949, V.A.M.S., names those causes for which a change of venue may be awarded: 'That the judge is interested or prejudiced * * *.'

In the past in construing change of venue statutes as they then existed, our appellate courts, upon one ground or another, and usually upon the ground that it was not timely, have held that an application for a change of venue for prejudice of the trial judge made after the trial is actually in progress will be denied. Massey v. Fitzpatrick, Mo.Sup., 175 S.W.2d 780; State ex rel. Reeder v. Foard, en Banc, 268 Mo. 300, 188 S.W. 71; Key v. Key, Mo.App., 93 S.W.2d 256; Planters' Bank v. Phillips, Mo.App., 186 S.W. 752; Savings Finance Corporation v. Blair, Mo.App., 280 S.W.2d 675; McArthur v. Kansas City Elevated Railway Co., 123 Mo.App. 503, 100 S.W. 62; Stone v. Boston, Mo.App., 218 S.W.2d 783; Junior v. Missouri Electric Light & Power Co., 127 Mo. 79, 29 S.W. 988; Methudy v. Methudy, Mo.App., 238 S.W. 562. See also 92 C.J.S., Venue, Sec. 164, page 879; 56 Am.Jur., Venue, Sec. 62, Page 64.

Certainly the present statutory sections do not provide that a party has the absolute right to a change of venue if it is applied for any time within five days of the discovery of the claimed prejudice. Nor do we believe the legislature had such intention in mind. To interpret the statute as defendant proposes would mean that a party could bring any trial at any stage thereof to a halt, and in effect cause a mistrial thereof, merely by filing in proper form for a change of venue. We...