Douglass v. White

• Citation: 34 S.W. 867,134 Mo. 228
• Parties: DOUGLASS et al. v. WHITE.
• Decision Date: 24 March 1896
• Court: Missouri Supreme Court

34 S.W. 867

134 Mo. 228

DOUGLASS et al. v. WHITE.

Supreme Court of Missouri, Division No. 1.

March 24, 1896.

CHANGE OF VENUE — APPLICATION — UNDUE INFLUENCE OVER JUDGE — NOTICE.

Plaintiff is entitled to a change of venue on an application which alleges that defendant has undue influence over the judge, and over the inhabitants of the county, and that knowledge of such facts first came to plaintiff on the day of filing his reply, and which was made as soon as such knowledge was acquired, and on the day on which the cause was set for hearing, and was filed in the presence of defendant and his attorney, and immediately thereafter delivered to such attorney with the file mark thereon, though formal notice of filing (Rev. St. § 2262) was not given.

Appeal from circuit court, Macon county; Andrew Ellison, Judge.

Action by Martha H. Douglass and another against William C. White. Judgment for defendant, and plaintiffs appeal. Reversed.

This is an action for damages, by plaintiffs against defendant, for the alleged wrongful conversion of a policy of insurance issued for the benefit of the plaintiff Martha H. Douglass, and for the failure on defendant's part to keep paid up the annual premiums on same as they fell due, agreeably to a contract entered into between plaintiffs and defendant. This suit was instituted and made returnable to the March term, 1893, of the Macon county circuit court; and at that term defendant appeared, and filed his motion to require plaintiffs to give a bond for costs, which being sustained, a cost bond was ordered filed in vacation, and the cause continued to the September term of court. Plaintiffs failed to file cost bond, as required by the order of court; and on the second day of September term, the day the cause was set down for hearing, defendant filed his answer, by way of special denial, coupled with a counterclaim against plaintiffs for some two or three thousand dollars on sundry notes made by plaintiffs to him. Plaintiffs then asked for a continuance of the cause, which was refused by the court; whereupon plaintiffs then asked leave to take a nonsuit, and defendant objected. The court then told plaintiffs that they could take a nonsuit as to the cause of action stated in their petition, but that the cause would stand for trial on defendant's answer and cross bill. Plaintiffs then declined to take a nonsuit, and asked leave to examine the answer and file reply, and said that they would go to trial on the case if the court would give them until 1 o'clock of that day. This was during the morning hour of court, just before the noon adjournment. At 1 o'clock, as the court convened, after the noon adjournment, the plaintiffs' attorney, in open court, filed and passed to defendant's attorney this application for a change of venue, in words and figures following, duly verified: "Martha H. Douglass & Thomas H. Douglass, Pltfs., vs. William C. White, Deft. In the Circuit Court of Macon Co., Mo., Sept. Term, 1893. Now comes the plaintiffs in this cause, and pray the court to grant them a change of venue herein, for the following reasons: 1st. That the defendant in this cause has an undue influence over the mind of the Hon. Andrew Ellison, judge of this court. 2nd. That the defendant in this cause has an undue influence over the inhabitants of this county of Macon, Mo. 3rd. That the information and knowledge of the existence of the causes for a change of venue, as herein alleged, first came to affiants this day, and after filing a reply in this cause; and that this application for a change of venue is made as soon as they, the affiants, acquired information and knowledge of the existence of the causes for a change of venue, as hereinbefore stated; and that such knowledge and information came to plaintiffs since the adjournment of the last term of court, and after filing their reply to defendant's answer. Martha H. Douglass. Thomas H. Douglass." The application being taken up, the defendant objected to the court's granting the change of venue as prayed for by plaintiffs, for the reason that no notice of the intended application had been served upon him or his client, as required by law, and that the cause has been set down for trial, and that it is out of time, informal, and irregular; whereupon the application was denied, a jury called, a trial had, and a verdict and judgment rendered for defendant for $2,327.85 on his counterclaim, which, in time, was duly entered, in accordance with the prayer of defendant's answer. After the usual steps taken, the appeal is brought to this court.

C. P. Hess, for appellants. Ben Eli Guthrie and Ben Franklin, for respondent.

ROBINSON, J. (after stating the facts).

Several errors are assigned, the first of which (the ruling of the court on the motion to change the venue) will only be considered, as, upon its determination, the judgment rendered herein must be reversed, and the case remanded, to be proceeded with as provided by statute, as in cases where applications for change of venue have been sustained. Applications of this character, in so far as the question as to whether their presentation is timely, or whether the notice of the intended filing of same is sufficient, or whether the application itself is sufficient as to substance and form, are addressed to the sound discretion of ...