Dunklin Cnty. v. Clark

• Decision Date: 31 October 1872
• Parties: DUNKLIN COUNTY, Plaintiff in Error, v. HENRY E. CLARK et al., Defendants in Error.
• Court: Missouri Supreme Court

51 Mo. 60

DUNKLIN COUNTY, Plaintiff in Error,

v.HENRY E. CLARK et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1872.

Error to Cape Girardeau Circuit Court.

S. M. Chapman, for plaintiff in error.

Louis Houck, for defendants in error.

ADAMS, Judge, delivered the opinion of the court.

This action was commenced in the Dunklin Circuit Court, and taken by change of venue to the Cape Girardeau Circuit Court on the application of the defendant Clark. The plaintiff for the first time objects in this court that the application ought to have been made by all the defendants.

If the other defendants are satisfied, it does not lie with the plaintiff to make this objection. Whether the other defendants are satisfied or not, or could raise such an objection at all, need not be inquired into now.

Another point made here is that the notice of this application was not properly served. But this point was not presented to the Circuit Court, and cannot be considered here.

The next point is that the court exercised its discretion unsoundly in sending the case to Cape Girardeau, and the ground taken is that it was inconvenient for the plaintiff's attorney to attend that court. Courts are not bound to consult the convenience of attorneys in making changes of venue. The court must send the case to some county where the causes complained of do not exist as convenient as may be to the opposite party. We do not see that the court exercised its discretion unsoundly in sending this case to Cape Girardeau.

There seems to be some confusion in this record, which, however, does not vitiate the final action of the court. The plaintiff amended his petition several times, and the defendant Clark filed an answer which was struck out, and then this order striking out was rescinded and the answer was left standing to the petition.

The defendant also demurred to each petition, and the demurrers were sustained and leave given to amend till a third amended petition was filed, which was also demurred to and final judgment given on this demurrer in favor of the defendants.

If a demurrer be filed and not disposed of, and an answer is afterwards filed and the case is tried on the answer, that amounts to a waiver of the demurrer. And in like manner, where an answer is filed and afterwards the case goes off on demurrer without noticing the answer, the proceedings on the demurrer amount to a withdrawal of the answer.

The only material point in this record is whether the demurrer to the last amended petition was properly sustained.

There are two separate counts in the petition; the first count alleges that Dunklin county is the owner in fee of several thousand acres of land, describing the land. The petition then charges that the defendant Clark, confederating with the other defenda...