Cunningham v. Current River R. Co.

• Citation: 165 Mo. 270,65 S.W. 556
• Parties: CUNNINGHAM v. CURRENT RIVER R. CO.
• Decision Date: 26 November 1901
• Court: United States State Supreme Court of Missouri

65 S.W. 556

165 Mo. 270

CUNNINGHAM v. CURRENT RIVER R. CO.

Supreme Court of Missouri, Division No. 2.

November 26, 1901.

CHANGE OF VENUE — FEE — JUDGE — SALARY — CONSTITUTIONAL LAW — ORDER — EFFECT.

1. A defendant who applies for change of venue of the action to another county is not in a position to object that Rev. St. 1899, § 833, requiring him to deposit $10 with such application, is in conflict with Const. art. 6, § 33, and article 10, § 10, prohibiting the change of the salary of any judge or officer during his term, because section 834 requires that if the change is granted such $10 shall be paid to the judge who tried the case, since the requirement that the applicant shall make the deposit is lawful, and he is not concerned in the disposition thereafter made of it.

2. Rev. St. 1899, § 834, providing that, where a change of venue of an action is granted, the $10 deposited with the application for the change, as required by section 833, shall be paid to the judge who tries the cause, does not violate Const. art. 6, § 33, providing that the salary of a judge shall not be increased during his term of office, since such payment is not an increase of salary, but merely compensation for extra work imposed on him by the change.

3. Where the court grants an application for change of venue of an action without a deposit of $10 having been made with the application, as required by Rev. St. 1899, § 833, the order granting the change is valid, and ousts the court of jurisdiction to proceed further in the action.

Appeal from circuit court, Howell county; W. N. Evans, Judge.

Action by B. V. Cunningham against the Current River Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

This action was begun by plaintiff before a justice of the peace in Howell county for damages alleged to have been sustained by him by the negligence of defendant in running over and killing his stock. The complaint is as follows: "Plaintiff states: That the defendant is, and was on the 10th day of August, 1897, a corporation organized and existing under the laws of the state of Missouri, and as such corporation owned and operated a railroad running and passing through said Hutton Valley township, in the state of Missouri. That on the said 10th day of August, 1898, the defendant, by its agents, servants, and employés, by running a locomotive and train of cars over said railroad in said township, ran said cars over and against, and struck and killed, two hogs of the plaintiff's, of the value of seven dollars each, to the damage of the plaintiff in the sum of fourteen dollars. That said hogs came upon the track of said railroad in said township where it passes through uninclosed lands, and where there was not any crossing of said railroad by public highway, nor in the limits of any town. The defendant on said 10th day of August, 1898, and for a long time prior thereto, had failed and neglected to keep and maintain a lawful fence on the sides of its road, but suffered the same to remain wholly unfenced at a point where said stock got upon the track and was killed as aforesaid, and that by reason thereof said stock got upon said railroad track, and the killing of said stock was occasioned then and there by the neglect and failure of the defendant to keep and maintain lawful fences on the sides of its road as aforesaid. Wherefore the plaintiff, by reason of the killing of said stock as aforesaid, and by virtue of section 2611 of the Revised Statutes of 1889 of the State of Missouri, demands judgment for double the value of said stock, to wit, the sum of twenty-eight dollars. The plaintiff, for another cause of action, states: That on the 29th day of June, 1897, the defendant was a corporation organized and existing under the laws of the state of Missouri, and as such corporation owned and operated a railroad passing and running though Hutton Valley township, in said county and state aforesaid, and that on the said 29th day of June, 1898, the defendant, by its agents, servants, and employés, while running a locomotive and train of cars over said railroad in said township, ran said train of cars against, and struck and killed, three calves, the property of this plaintiff, of the value of fifty dollars, to the damages of the plaintiff in the sum of fifty dollars. The said calves came upon the track of said railroad in said township where it passes through uninclosed lands, and where there was not any crossing of said railroad by a public highway, nor in the limits of any town. That the defendant on the said 29th day of June, 1898, and for a long time prior thereto, failed and neglected to keep and maintain a lawful fence on the sides of its said railroad, but suffered the same to remain wholly unfenced at the point where said stock got upon the track and were killed as aforesaid, and that by reason thereof said killing of said stock was occasioned then and there by the neglect and failure of the defendant to keep and maintain lawful fences on the sides of its road as aforesaid. Wherefore the plaintiff, by reason of the killing of said stock as aforesaid, and by virtue of section 2611 of the Revised Statutes of 1889 of the State of Missouri, demands judgment for double the value of said stock, to wit, in the sum of one hundred dollars." Plaintiff recovered judgment before the justice, from which defendant appealed to the circuit court. Thereafter, at the regular June term, 1898, of the Howell circuit court, defendant filed its application for a change of venue from that county, upon the grounds of undue influence by plaintiff over the mind of the judge of that court, and prejudice of the inhabitants of the county against defendant. At the same term the motion was sustained upon the first ground assigned, and a change of venue awarded to Texas county, and the clerk of the court ordered without delay to make out a complete transcript of the record, and transmit the original files, not forming a part of the record, to the clerk of the circuit court at Houston, Texas county. But the defendant did not deposit at any time with the clerk of the court the $10 required of it under such circumstances by sections 2272a, 2272b, Acts 1895, p. 92 (sections 833, 834, Rev. St. 1899), and the clerk did not make out and transmit the record as required by the order of the court. Thereafter, at the October term of said circuit court of Howell county, the following occurred: `Now on this day, this cause coming on to be heard, plaintiff being present in person and by attorney, and the defendant being present by...