Corpenny v. City of Sedalia

• Citation: 57 Mo. 88
• Parties: F. J. CORPENNY, Respondent, v. CITY OF SEDALIA, Appellant.
• Decision Date: 31 July 1874
• Court: United States State Supreme Court of Missouri

57 Mo. 88

F. J. CORPENNY, Respondent,

v.CITY OF SEDALIA, Appellant.

Supreme Court of Missouri.

July Term, 1874.

Appeal from Pettis Circuit Court.

Draffin & Williams, for Appellant.

Snoddy & Bridges and Phillips & Vest, for Respondent.SHERWOOD, Judge, delivered the opinion of the court.

The plaintiff alleged in his petition, that he was the owner of a certain lot in the city of Sedalia, and had built on said lot a large two-story brick business house, with a large cellar thereunder, in accordance with the established grade, but that the city had so negligently constructed a drain or sewer, as to flood the premises of plaintiff, and fill his cellar with the waters collected from all portions of the city, greatly injuring his building, and reducing the rents below the sum for which it had formerly rented, &c., &c. This petition is very inartificially drawn, but enough, I think, can be gleaned from its allegations to show that plaintiff has a cause of action. The motion in arrest, based on the alleged insufficiency of the petition, was, therefore properly overruled.

But the question to which the counsel have chiefly directed their attention in argument, is whether there was error in the refusal to grant the defendant a change of venue. It appears from the record, that the parties had announced themselves ready for trial on Saturday, and a portion of the jurors were sworn and examined, but owing to a lack of time to complete the panel on that day, the cause was continued for further proceedings until the following Monday, at which time, and as soon as the court opened, and while the jury was being called, the defendant made application for the change above referred to, based on the alleged prejudice of the judge, and the alleged undue influence which the plaintiff had over his mind. The application also set forth that the knowledge of these matters first came to the defendant since the adjournment of the court on the preceding Saturday, and was verified by the affidavit of the city attorney to the effect that the petition was true, and that he had good cause to believe that the defendant could not have a fair trial, on account of the causes therein alleged. The bill of exceptions does not recite the reasons which moved the court to overrule the application, but it is not unworthy of remark that the record entry, which sets forth that the application was overruled, is not confined to that statement, as is usual in entries of that character, but proceeds to set forth the grounds upon which such action was based, which were: want of notice to the plaintiff; that the application was irregular, and that the same was not made in good faith, but for delay. And yet it does not appear, either from the record entry referred to, nor from the bill of exceptions, that plaintiff offered any resistance to the granting of the application on account of the lack of notice of its intended presentation or because of its defects in any other particular.

The defendant, upon the refusal of the application, abandoned the cause at that point, and tendered its exceptions. The panel of jurors was then completed in the absence of the defendant, and a trial had, resulting in a verdict for the plaintiff. Our statute respecting notices, provides that (“unless otherwise provided by law”) they shall be served at least five days prior to the time “appointed for the hearing of the motion, pleading or other proceeding.” (Wagn. Stat., §§ 22, 25, p. 1010.)

As no different manner is prescribed in the act concerning venue, it is presumed that when it refers to “reasonable notice,” as a pre-requisite in granting the change, that reference is thereby intended to the general law on the subject of notices and their...