Guy v. Kansas City, Ft. S. & M. R. Co.

• Decision Date: 30 March 1906
• Court: Missouri Supreme Court
• Parties: GUY v. KANSAS CITY, FT. S. & M. R. CO.

93 S.W. 940

197 Mo. 174

GUY v. KANSAS CITY, FT. S. & M. R. CO.

Supreme Court of Missouri, Division No. 1.

March 30, 1906.

VENUE — CHANGE — DISQUALIFYING MORE THAN ONE JUDGE—TRIAL.

Rev. St. 1899, §§ 818-822, give a right to a change of venue for the prejudice of the judge, and declare that in no case shall more than one change be granted, and provide that where the change is granted, the judge shall send the cause to some county in the same, adjoining, or next adjoining circuit where the causes complained of do not exist. Acts 1879, p. 80, making two divisions of the circuit court of a county, provides in section 11 (page 82) that no change of venue shall be allowed by the circuit court for any reason that may be alleged against the judge of the division to which the same is assigned; but, if such reason may exist, the cause shall be transferred to the division held by the other judge; but, if the reason exists against both judges, the change may be allowed to the circuit court of some contiguous county. Acts 1889, p. 77, and Acts 1901, p. 118, increase the number of the divisions of the circuit court of such county, without affecting the provisions of section 11. Held, that section 11 exempts the circuit court of such county from the provisions of the general law, which applies only to courts where there is but one judge, and a party applying for a change of venue for the prejudice of a judge of a division of such court cannot by his affidavit disqualify the other judges of the court, but the question of the disqualification of the other judges must be tried as other collateral questions of fact addressed to the court are tried, in the absence of the Legislature prescribing a particular mode of trial of such questions.

Appeal from Circuit Court, Bates County; W. W. Graves, Judge.

Action by John F. Guy against the Kansas City, Ft. Smith & Missouri Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

L. F. Parker and Pratt, Dana & Black, for appellant. Thos. J. Smith, W. O. Jackson, and Geo. W. Wright, for respondent.

VALLIANT, J.

Plaintiff, a brakeman on one of defendant's freight trains, received personal injuries in consequence, as he declares, of the negligent handling of the train. He brought suit for damages in the circuit court of Jackson county and the cause was regularly assigned to division No. 5 of that court. After the pleadings were made up he applied to the court for a change of venue, alleging in his affidavit, as the ground for the change, that the judge of division No. 5 was prejudiced against him, and that the defendant had an undue influence over the judge, and that the same reason for a change of venue applied also to each of the judges of the other four divisions, naming them. When the application came on for hearing plaintiff offered no evidence. Defendant appeared, and objected to the change of venue on the ground, among others, that the party could not thus disqualify all the judges in that circuit, and thus send the cause to an adjacent circuit. The court overruled the objection and made an order, first, that the cause be sent to Vernon county, but, on the suggestion that that county was not in an adjoining circuit, the order was changed so as to send it to Bates county. Defendant duly excepted to the ruling of the court, and filed its term bill of exceptions in the Jackson circuit court. The cause was sent to the Bates county circuit court, where it was tried. Verdict and judgment for plaintiff for $5,150, from which defendant appeals.

We have first to deal with the question of the change of venue. This same question was decided in Eudaley v. Railroad, 186 Mo. 399, 85 S. W. 366. In that case, as in this, the plaintiff, after bringing suit in Jackson county, applied for a change of venue on the ground, alleged, that the judge of the division to which the cause had been assigned was prejudiced against him, and that the defendant had an undue influence over him, and that the same reason applied to all the other judges of that court. The judge in that case, to whom the application was made construed the law to be that the plaintiff's affidavit was conclusive and that the court had no discretion but to select another county to which he would send the case, and accordingly sent it to Lafayette county. The defendant preserved its exception to the ruling by a term bill of exceptions. The cause was tried in the circuit court of Lafayette county. There was a judgment for the plaintiff, and defendant appealed. We held in that case that the sending of the case out of Jackson county was error, and for that error the judgment of the circuit court of Lafayette county was reversed, and the cause remanded to that court, with directions to return the record to the circuit court of Jackson county, and directions to the circuit court of Jackson county to resume jurisdiction of the cause and proceed with it according to law.

We do not consider it necessary to enter anew on the full discussion of that subject as our views are set out in the opinion in that case. In the brief of respondent, however, it is suggested that we did not, in that case, refer to the act of 1879 which made two divisions of the circuit court of Jackson county (Acts 1879, p. 82), and which in section 11 thereof provided that "after the date aforesaid, no change of venue shall be allowed by said circuit court, for any reason that may be alleged against the judge of the division to which the same is assigned but if such reason may exist, the cause shall be transferred to the division held by the other judge; but if the reason exists against both judges of said court, then the change may be allowed to the circuit court of some contiguous county, unless otherwise disposed of according to law." Since the passage of that act there have been two other acts of the General Assembly relating to the organization of the circuit court of Jackson county; one making four divisions (Acts 1889, p. 77), and the other increasing it to...