Coffey v. City of Carthage

• Decision Date: 04 December 1906
• Citation: 98 S.W. 562,200 Mo. 616
• Parties: COFFEY v. CITY OF CARTHAGE.
• Court: Missouri Supreme Court

98 S.W. 562

200 Mo. 616

COFFEY v. CITY OF CARTHAGE.

Supreme Court of Missouri, Division No. 2.

December 4, 1906.

On Rehearing, December 22, 1906.

1. STATUTES—TITLE—CONNECTED SUBJECTS.

Acts 1901, p. 120, is entitled "An act in relation to the Twenty-Fifth judicial circuit, dividing the court into two divisions, providing two judges for the transaction of the business of the court, for the appointment of an additional judge, and fixing the salary of such judges." Held, that the matter of change of venue of actions pending in such court, provided for in such act though not mentioned in the title, had a natural connection therewith, and that the act was therefore not in violation of Const. art. 4, § 28, providing that no law shall relate to more than one subject, which shall be expressed in its title.

2. APPEAL — CHANGE OF VENUE — REVIEW —EXCEPTIONS.

In order to justify a review on appeal of an order changing the venue of an action, an objection must be made and an exception saved at the term and in the court awarding the change of venue.

3. VENUE — CHANGE — UNAUTHORIZED ORDER —EFFECT.

Where the court granting a change of venue had jurisdiction of the subject-matter and the parties to the suit, and power to award a change of venue, the order granting the change was not void, though made without any existing cause therefor and without proof, and hence the court to which the change was granted had no authority to dismiss the cause on motion.

4. STATUTES—LOCAL AND SPECIAL LAWS

Acts 1901, p. 120, dividing the Twenty-Fifth judicial circuit court into two divisions, providing for two judges therefor, fixing their salary, and regulating changes of venue in actions pending in such court, was not a local or special law within Const. art. 4, § 53, prohibiting the enactment of a local or special law where a general law can be made applicable, etc.

5. MUNICIPAL CORPORATIONS — DEFECTIVE STREETS—INJURIES—CONTRIBUTORY NEGLIGENCE —BURDEN OF PROOF.

In an action against a city for injuries on an alleged defective street, the fact that plaintiff was not in the exercise of ordinary care at the time of the accident was an affirmative defense, the burden of proving which was on defendant.

6. STIPULATIONS—ADMISSION OF EVIDENCE.

Where the parties stipulated that a copy of an ordinance could be used as evidence in lieu of the original, and that the testimony of L., with reference to such ordinance, might be used, subject to the same objections by defendant that the original evidence would be subject to, plaintiff was entitled to introduce a copy of the ordinance without laying a foundation therefor.

7. MUNICIPAL CORPORATIONS — DEFECTIVE SIDEWALKS—CARE REQUIRED.

Where, under a city ordinance, the entire space between the curbstone of a street and the lot line, including the grass plot, was embraced in the sidewalk, and expressly set apart for that purpose, it was incumbent on the city to keep the entire space so thrown open to the public as a sidewalk, in a condition reasonably safe for pedestrians who had occasion to use it.

On Rehearing.

8. APPEAL—SCOPE OF REVIEW—OBJECTIONS AT TRIAL—MOTION FOR NEW TRIAL.

Where defendant objected at the time to a change of venue, saved an exception to the ruling, and preserved the same in a bill of exceptions signed by the trial judge, and filed at the same term at which the ruling was made, but failed to call the trial court's attention to the ruling in defendant's motion for a new trial, the objection could not be reviewed on appeal.

Appeal from Circuit Court, Newton County; F. C. Johnston, Judge.

Action by S. A. Coffey against the city of Carthage. From a judgment for plaintiff, defendant appeals. Affirmed.

J. D. Harris and E. O. Brown, for appellant. H. L. Shannon, Cole, Burnett & Williams and Clay & Sheppard, for respondent.

BURGESS, P. J.

This case was before this court on a former appeal by the plaintiff, and will be found reported in 186 Mo. 573, 85 S. W. 532, wherein a full and fair statement of the salient facts may be found. The judgment was reversed and the cause remanded. Thereafter plaintiff presented an application for a change of venue based upon the grounds that she could not have a fair and impartial trial before the judge of the division of the court in which the cause was then pending, on account of the prejudice of said judge, and also alleging that she could not have a fair and impartial trial in the other division of said court, presided over by Judge Howard Gray, on account of his prejudice against her, and because he was interested in the result of the trial of the cause, in that he was the owner of a large amount of property in the defendant city subject to taxation for municipal purposes. The motion was sustained, and a change of venue awarded to the circuit court of Newton county in the Twenty-Fourth judicial circuit, to which action of the court plaintiff at the time excepted. After the cause was transferred to the circuit court of Newton county, the defendant filed its motion to dismiss the case and strike the same from the docket of that court on the ground, among others, that the Jasper circuit court consisted of two divisions presided over by two judges, and that the plaintiff, in her application for change of venue, could only disqualify the judge in whose division the case was pending, which motion was overruled and defendant duly saved its exceptions. The case was tried on the 22d day of December, 1905, in the Newton county circuit court, and a verdict for $3,500 rendered in favor of the plaintiff. Motions for a new trial and in arrest of judgment were filed and overruled, and defendant duly excepted, and appeals.

Defendant insists that the act of the General Assembly approved March 25, 1901 (Acts 1901, p. 120), entitled "An Act in relation to the Twenty-Fifth judicial circuit, dividing the court into two divisions, providing two judges for the transaction of the business of said court, for the appointment of an additional judge, and fixing the salary of said judges," is void in so far as it relates to changes of venue, because in violation of article 4, section 28, of the Constitution, providing that no law "shall relate to more than one subject, and that shall be expressed in its title." While the matter of change of venue is not mentioned in the title to the act it certainly has a natural connection therewith, and it has always been held by the court that such provisions in a law are valid. Thus in State ex rel. v. Mead, 71 Mo. 266, it was said that "a provision in an act concerning popular elections authorizing the Governor to fill vacancies in elective offices is germane to the general subject, and is valid." So it was held in the case of Ewing v. Hoblitzelle, 85 Mo. 70, that a statute providing for the registration of voters, and to govern elections, and to create the office of recorder of votes, contained but one subject, and in that case it was said that an act containing provisions relating to matters which are germane to the general subject is not obnoxious to the constitutional inhibition that "no bill shall contain more than one subject." To the same effect are State v. Bennett, 102 Mo. 356, 14 S. W. 865, 10 L. R. A. 717; Lynch v. Murphy, 119 Mo. 163, 24 S. W. 774, and cases cited. It is not at all necessary to the validity of an act of the Legislature that it embrace every detail of legislation embraced in it, but all the Constitution requires is that the subject embraced in the act shall be fairly and naturally germane to that recited in the title, and we think such is the case with respect to the provision of the act in question.

Other grounds for dismissal assigned in said motion were as follows: Second, that the act, "Courts of Record, Circuit Courts," Acts 1901, p. 120, passed and approved March 25, 1901, is unconstitutional and void so far as it relates to changes of venue, for the following reasons: The title to said act does not include change of venue, and is in violation of article 4, § 28, Const. That said act is in violation of article 4, § 28, Const. Said act is in violation of article 4, § 53, Const. That said act is in violation of article 4, § 53, par. 33. Finally, said act is void for want of uniformity as a general law. Because the affidavit for a change of venue was not sufficient for the reason that it does not sufficiently allege the time when the information of the causes set forth for change of venue came to the knowledge of the plaintiff. That the application for a change of venue does not state in the body thereof that the plaintiff could not have a fair and impartial trial for the reasons alleged therein.

It is now earnestly insisted that the court erred in overruling this motion because at the time plaintiff's application for change of venue was made there were two divisions of the Jasper circuit court, presided over by as many judges; that this case was assigned for trial to division No. 2, presided over by Judge Dabbs; that the application sought to disqualify not only Judge Dabbs on account of prejudice, but also Judge Gray of the other division, and that Judge Dabbs, in granting the change of venue to Newton county, did so without any proof or showing of prejudice by Judge Gray against the plaintiff, in the absence of which the cause should have been sent to division No. 1. But the circuit court of Jasper county, over which Judge Dabbs presided, had jurisdiction of the subject-matter and of the parties to the suit, and the power to award a change of venue; and although the order for the change may have been made without any existing cause therefor, or without any proof in support of the motion, or even if it...