Gee v. St. Louis Railway Co.
| Decision Date | 22 June 1897 |
| Citation | 41 S.W. 796,140 Mo. 314 |
| Parties | Gee, Appellant, v. St. Louis Railway Company |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.
Affirmed.
Sterling P. Bond for appellant.
(1) The statute granting the right of change of venue on account of the undue influence of the opposite party, where the application is sufficient, is mandatory and peremptory. R. S 1889, sec. 2262; Dowling v. Allen & Co., 88 Mo. 299; Railroad v. Fowler, 113 Mo. 469; McGee et al. v Porter, 14 Mo. 614. (2) Courts are not bound to consult the convenience of attorneys in making change of venue. The courts must send the case to some county where the causes complained of do not exist, as convenient as may be to the opposite party. Dunklin County v. Clark et al., 57 Mo. 60; The State v. Simmons, 124 Mo. 445. (3) It was error to permit respondent to controvert facts alleged in application for change of venue. Dowling v. Allen & Co., 88 Mo. 293, 299. (4) Exception must be saved at the time and in the court awarding change of venue. Stearns v. Railroad, 94 Mo. 321; Keen v. Schnedler, 92 Mo. 524, 525; Squires v. Chillicothe, 89 Mo. 232.
Smith P. Galt for respondent.
(1) The circuit court of the city of St. Louis did not err in sending the case on change of venue to St. Louis county, as the suit was pending in the circuit court of the city of St. Louis. For the purposes of a change of venue, the only question involved was the facts as to whether or not the defendant had an undue influence over the inhabitants of the city of St. Louis, because under section 2258 of the Revised Statutes of 1889, the third ground for a change of venue is, "that the opposite party has an undue influence over the inhabitants of the county," and there is no authority in the statutes which authorizes the applicant for a change of venue to put into his unconscionable affidavit all the other counties in the circuit in which the suit is pending, and all the other counties in an adjoining circuit, except such county or counties which the applicant may reserve as the county to which he desires the case to be removed, for his special purposes. R. S. 1889, secs. 2261 and 2258; Moore v. Railroad, 51 Mo.App. 504; Fields v. Maloney, 78 Mo. 172; State ex rel. v. Springer, 45 Mo.App. 252; Stearns v. Railroad, 94 Mo. 317; Hembree v. Campbell, 8 Mo. 572; Powers v. Browder, 13 Mo. 154; Chouteau v. Allen, 70 Mo. 290.
This is an action for damages for personal injuries suffered by plaintiff on account of the alleged negligence of defendant. The answer is a general denial and contributory negligence.
The action was brought in the June term of the St. Louis circuit court, 1893. On the thirtieth of October, 1893, the appellant filed his application for change of venue in proper form upon the ground "that the defendant has an undue influence over the inhabitants of said city of St. Louis, and an undue influence over the inhabitants of St. Louis county, and that he has just cause to believe that he can not have a fair trial, either in said city of St. Louis or said St. Louis county, on account of the causes alleged."
Respondent, on the thirty-first of October, 1893, filed a counter-affidavit, which was sworn to by respondent's counsel, in which it states "that the defendant does not operate its railroad, and has no property in the county of St. Louis, nor do any of its officers reside therein, nor have they ever resided therein, nor has the defendant any interests in said county; and affiant further says that the defendant has not now, and never has had, an undue influence over the inhabitants of said county; and affiant for the defendant says that said county of St. Louis is the most convenient to said defendant for the trial of said cause, and any other county in said adjoining circuit of the city of St. Louis will be very inconvenient to said defendant."
The circuit court of the city of St. Louis ordered a change of venue to St. Louis county and plaintiff excepted and filed its bill of exceptions in said court. The case was tried in the St. Louis county circuit court and resulted in a verdict and judgment for defendant and plaintiff appealed.
The sole error assigned is the ruling of the court in awarding a change of venue to St. Louis county.
I. Defendant makes the point here that the appearance of plaintiff in the circuit court of St. Louis county was a waiver of all irregularities in granting the change of venue. It is said, the court having jurisdiction of the subject-matter, the appearance of all the parties gave it jurisdiction to hear and determine the cause. But we are not now dealing with the question of jurisdiction but with that of error in the proceeding by which the change of venue was made. Plaintiff objected, in the St. Louis circuit court, to the order sending the case to St. Louis county, on the ground that the same cause existed there as existed in the city of St. Louis. To the ruling of the court he saved his exception at the time, by bill filed in said court. In our opinion the course adopted was the proper one to pursue in order to save the point for review in this court. Squires v. Chillicothe, 89 Mo. 226, 1 S.W. 23; Keen v. Schnedler, 92 Mo. 516, 2 S.W. 312; Stearns v. Railroad, 94 Mo....
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