Gale v. Michie

• Citation: 47 Mo. 326
• Parties: D. R. GALE, ADMINISTRATOR OF THE ESTATE OF JAMES B. MAUPIN, DECEASED, Defendant in Error, v. JOHN B. MICHIE, Plaintiff in Error.
• Decision Date: 31 January 1871
• Court: United States State Supreme Court of Missouri

47 Mo. 326

D. R. GALE, ADMINISTRATOR OF THE ESTATE OF JAMES B. MAUPIN, DECEASED, Defendant in Error,

v.JOHN B. MICHIE, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1871.

Error to First District Court.

Lay & Belch, for plaintiff in error.

Ewing & Smith, for defendant in error, cited 38 Mo. 501; 8 Mo. 609; 34 Mo. 204; 33 Mo. 117.

BLISS, Judge, delivered the opinion of the court.

It appears that the plaintiff had recovered judgment against defendants in the Gasconade Circuit Court, upon which judgment execution was issued, and the defendants presented their motion to quash the execution, upon the ground that the judgment was void, as having been rendered without jurisdiction over the persons of defendants and in their absence. The plaintiff was the judge of said Circuit Court, and when the motion came up for hearing he called upon Hon. T. M. Rice, judge of the First Circuit, to preside and hear the motion, to which the defendants objected, upon the ground that the judge of the court was present in good health, and none of the reasons existed that would authorize him to call upon the judge of the First Circuit to preside, and they also demanded a change of venue to some other circuit. But the objections were overruled, the change of venue was refused, and Judge Rice took his seat to hear the motion. Afterward, defendants presented a formal motion in writing, verified by affidavit, for a change of venue, upon the ground that the judge of the Gasconade Circuit Court was interested as a party, which motion was overruled, and thereupon the original motion to quash was taken up, heard by Judge Rice, and overruled, the entry showing that “the Hon. T. M. Rice, judge of the First Judicial Circuit, was called to the bench in this cause, at the request of the Hon. Daniel Q. Gale, judge as aforesaid, and the matters and things contained in said motion being seen and fully considered by the court are overruled, to which defendants then and there objected and excepted.”

Defendants sued out a writ of error to the action of the court upon this motion, and the plaintiff objects to its consideration for the reason that there was no final judgment. It is difficult to understand what is meant by this objection. Ordinarily, a motion, pending the trial of a cause, is a part of the proceedings, and its disposition will not be reviewed until final judgment in the pending cause. But in this case no further judgment is to be had; the principal cause had been already disposed of; the overruling of the motion is a final and complete disposition of its subject-matter, and if the objection has any application it must be to the allowance of a writ to the action of the court upon such a motion. But that question is not an open one, this court having uniformly sustained such writs. (Bain v. Chrisman, 27 Mo. 293; Parker...