La Grange Elevator Co. No. 111 v. Richter

• Decision Date: 06 June 1939
• Docket Number: No. 24920.,24920.
• Citation: 129 S.W.2d 22
• Parties: LA GRANGE ELEVATOR CO. NO. 111 v. RICHTER.
• Court: Missouri Court of Appeals

129 S.W.2d 22

LA GRANGE ELEVATOR CO. NO. 111 v. RICHTER.

No. 24920.

St. Louis Court of Appeals. Missouri.

June 6, 1939.

Error to Circuit Court, Lewis County; Noah W. Simpson, Special Judge.

"Not to be published in State Reports."

Action by the La Grange Elevator Company No. 111 against Herbert J. Richter for the balance allegedly due on an open account for merchandise and for services, wherein defendant filed a counterclaim. For purpose of obtaining review of final judgment in favor of plaintiff, defendant brings an original proceeding in the Court of Appeals by writ of error.

Judgment reversed and cause remanded.

Ben Ely, of Hannibal, Gray Snyder, of Palmyra, and W. A. Mussetter, of La Grange, for plaintiff in error.

Barker Davis, of Canton, for defendant in error.

BENNICK, Commissioner.

This is an original proceeding in this court by writ of error sued out at the instance of Herbert J. Richter for the purpose of obtaining a review of a final judgment which was rendered by the Circuit Court of Lewis County in an action brought against said Richter by La Grange Elevator Company No. 111.

The action below was for the balance alleged to be due upon an open account for goods, wares, and merchandise sold by plaintiff to defendant, and for services performed by plaintiff at the instance and request of defendant.

The answer, following a general denial, was a plea of payment, coupled with a counterclaim upon an open account for the value of certain cottonseed meal and linseed oil meal sold to plaintiff at his instance and request, as well as for a sum representing defendant's alleged mistaken overpayment of plaintiff's account.

Tried to a jury, a verdict was returned in favor of plaintiff on its cause of action for the sum of $317.24, and against defendant on his counterclaim. Final judgment was rendered accordingly, and it is upon such judgment that writ of error has been brought in this court.

For his first point defendant argues that the court erred in refusing to grant him a change of venue both upon his original application and upon his second or amended application.

In his first application, which was filed on April 12, 1937 (the first day of the April, 1937, term), defendant prayed for a change of venue upon the ground that he could not have a fair trial "on account of the bias and prejudice of the inhabitants of Lewis County, Missouri, against him".

This application was overruled by the court, and on April 14th defendant prepared and filed the following second or amended application:

"Comes now H. J. Richter, defendant herein, and being first duly sworn upon his oath states that he cannot have a fair and impartial trial in the Circuit Court of Lewis County, Missouri, because

"(a) the inhabitants of Lewis County, Missouri, are biased and prejudiced against this defendant;

"(b) the plaintiff has undue influence over the inhabitants of Lewis County, Missouri.

"Said affiant, this defendant, further on oath states that the knowledge and information of the above bias and prejudice of the inhabitants of said county and of the undue influence of plaintiff over the said inhabitants first came to this defendant after the last continuance of this case and upon the first day of this term of court, viz.: on the 12th day of April, 1937, or within two days prior thereto; that upon said 12th day of April, and after serving notice of his application upon the plaintiff, defendant applied for a change of venue but his said application was denied because insufficient in form only, and that this application is made within two days after said action of the court, and that this applicant has served due and timely notice of this application on plaintiff and his attorney.

                         "(Signed) Herbert J. Richter
                

"Subscribed and sworn to before me this 14th day of April, 1937.

                         "(Signed) Ben E. Noel
                                            "Cir. Clerk
                                   "By B. M. Bradshaw
                                               "D. C."
                

It has been held that the filing of a subsequent application for a change of venue after the denial of a previous one based upon the same ground constitutes a waiver of the right to complain of the denial of the first application (Industrial Acceptance Corporation v. Webb, Mo.App., 287 S.W. 657), and so in this case, when defendant filed his second or amended application which was based in part upon the ground that the inhabitants of Lewis County were biased and prejudiced against him, he waived any right he might have had to complain of the refusal of his first application which had been based entirely upon that ground.

Indeed defendant makes no very serious point about the refusal of his first application, which he concedes may have been insufficient in the matter of the allegation as to when his information or knowledge of the supposed bias and prejudice of the inhabitants of Lewis County had first come to him. He insists, however, that his second application was in any event...