Cantrell v. City of Caruthersville, 43366
| Decision Date | 09 February 1953 |
| Docket Number | No. 43366,No. 1,43366,1 |
| Citation | 363 Mo. 988,255 S.W.2d 785 |
| Parties | CANTRELL et al. v. CITY OF CARUTHERSVILLE |
| Court | Missouri Supreme Court |
Von Mayes and Fred L. Henley, Caruthersville, for appellants.
Ward & Reeves, Caruthersville, for respondent.
Appeal from order overruling motion to set aside judgment (and quash writ of restitution thereon) in the case of Cantrell v. City of Caruthersville, Mo.Sup., 249 S.W.2d 425. Appellants contend the judgment is void because they say that Honorable R. B. Oliver III, Judge of the 28th Judicial Circuit, was without jurisdiction to try said cause.
The record entry made by the regular Judge of the Circuit Court of Pemiscot County, 38th Judicial Circuit, was as follows:
'Hon. Louis H. Schult, the Judge of this Court, being disqualified to hear and determine the issues involved in this cause, it is therefore requested that Hon. R. B. Oliver, III Judge of the 28th Judicial Circuit, try the case, and the same is set for hearing before Judge R. B. Oliver III on Tuesday, February 22, 1951.'
Appellants say: 'The above entry states no disability or reason for disqualification as required by Section 478.060, R.S.1949 [V.A.M.S.], and in the absence of the file papers or a record entry, showing such disability or reason for disqualification, a regular judge is without jurisdiction to name a special judge in a civil case or call in the judge of another circuit to hold a full or part term of his court.' Appellants also question whether Sec. 15, art. V, 1945 Constitution, V.A.M.S., is self-enforcing and seek to place such limitations upon it as were made by such cases as State ex rel. Dunlap v. Higbee, 328 Mo. 1066, 43 S.W.2d 825. See also State ex rel. Kansas City Public Service Co. v. Waltner, 350 Mo. 1021, 169 S.W.2d 697, under provisions of the Constitution of 1875.
Appellants are wrong. Sec. 15, art. V, means exactly what it says, namely: 'Any circuit judge may sit in any other circuit at the request of the judge thereof.' The carefully considered purpose of this provision was to completely do away with the technical limitations stated in the cases cited under the 1875 Constitution. We hold this provision is self-enforcing and that Sec. 478.060 () has nothing whatever to do with it. It makes no difference whether the request is to sit in one case or...
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...79 S.W. 146 (1904); Sears v. Norman, supra, n. 3.5 This was in accordance with V.A.M.R. Civil Rule 41.07.6 Cantrell v. City of Caruthersville, 363 Mo. 988, 255 S.W.2d 785 (1953). This has been the rule in criminal cases. "There is nothing in the section which expressly requires that the fac......
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...ascertaining the compensation. These cases do not control the situation we have here. We do not consider that Cantrell v. City of Caruthersville, 363 Mo. 988, 255 S.W.2d 785, 786, supports appellants' position. There the provision of the Constitution, art. 5, Sec. 15 was, "Any circuit judge......
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...disqualifying himself after previously calling in another judge, who did not try the case. More recently in Cantrell v. City of Caruthersville, Mo.Sup., 255 S.W.2d 785, 786, we held a judge, sitting at the request of the judge of another circuit under Sec. 15, Art. V, had jurisdiction of th......
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State ex rel. Creamer v. Blair, 44234
...under the 1875 Constitution, stated in State ex rel. Dunlap v. Higbee, supra, and other cases construing it. See Cantrell v. City of Caruthersville, 363 Mo. 988, 255 S.W.2d 785. This intent seems clear both from these new provisions of the 1945 Constitution, the elimination of the provision......