Hayes v. Hayes

• Decision Date: 10 November 1952
• Docket Number: No. 43187,No. 1,43187,1
• Citation: 252 S.W.2d 323,363 Mo. 583
• Parties: HAYES v. HAYES
• Court: Missouri Supreme Court

Page 323

252 S.W.2d 323

363 Mo. 583

HAYES v. HAYES.

No. 43187.

Supreme Court of Missouri, Division No. 1.

Nov. 10, 1952.

Rogers & Rogers, Gainesville, Smith & Williams, Springfield, for appellant.

Walker & Daniel, Springfield, for respondent.

COIL, Commissioner.

In May 1949 the judge of Division No. 2 of the Circuit Court of Greene County granted a divorce to plaintiff-respondent from defendant-appellant, awarded plaintiff custody of two minor children, and provided certain visitation rights for defendant. In November 1949 defendant's motion to modify the decree as to custody was overruled and the decree, as to custody, modified on the court's own motion. In March 1951 defendant filed a second motion to modify as to custody. Plaintiff filed an answer and a cross-motion which also sought a modification as to custody. On May 7, 1951, defendant filed an application for change of venue averring that she could not have a fair and impartial trial before the judge of the trial court because of alleged prejudice on his part against defendant and because of alleged influence of the plaintiff over the mind of the judge. This application was overruled. A hearing on the plaintiff's and defendant's respective motions to modify was had; defendant's motion was overruled and plaintiff's motion sustained in part. A judgment was entered modifying the provisions of the decree as to custody.

Defendant appealed to the Springfield Court of Appeals. One assignment was that the trial court erred in overruling defendant's application for change of venue. The court of appeals affirmed the judgment of the trial court. One of the judges dissented in a separate opinion in which it was held that the trial court erred in overruling defendant's application for change of venue. Hayes v. Hayes, Mo.App., 247 S.W.2d 551. The court of appeals transferred the cause here because of the general interest and importance of the question involved and for the purpose of having re-examined the existing law pertaining thereto. Mo.Const.1945, Art. V, Sec. 10, V.A.M.S. Under these circumstances, our determination of the case is the same as though it were here on original appeal. Art. V, Sec. 10, supra.

The view we take makes it necessary to determine only defendant's contention that the trial court erred in overruling her application for change of venue. This, because we have concluded that the application for change of venue should have been sustained.

Section 508.090 RSMo 1949, V.A.M.S., provides in part: 'A change of venue may be awarded in any civil suit * * *, for any of the following causes: (1) That the judge is * * * prejudiced, * * *; (2) That the opposite party has an undue influence over the mind of the judge; * * *.' (All further references to sections are to RSMo 1949, V.A.M.S., unless otherwise indicated.) Section 508.120 provides that an application for change of venue must be made before an answer to the merits except when the information or knowledge of the existence of the cause for the change was first had after the filing of such answer, in which event the application shall state the time when the knowledge was acquired, and the application must be made within five days thereafter. The instant application was filed on May 7, 1951; it alleged that the knowledge of the existence of the causes for the change was acquired on May 1, 1951. By computation of time as provided in Section 506.060 the application was filed within five days. Thus, it appears that the application for change of venue was in proper form and timely filed; no contention to the contrary is made by plaintiff-respondent here.

Plaintiff contends that the application was properly overruled because a motion to modify a decree of divorce is not a 'civil suit' within the meaning of Section 508.090; that such a motion is an ancillary or supplemental proceeding; and that the right to a change of venue being purely statutory, and there being no provision for a change of venue in a proceeding to modify a decree of divorce, it follows that no change of venue lies in such proceeding.

Decisive in the first instance of the question presented is the meaning to be ascribed to the words 'civil suit' as used in Section 508.090, supra. It has been said that the term 'change of venue' is a misnomer in those cases where, as here, a change of judge is the thing sought. State ex rel. Kansas City Public Service Co. v. Waltner, 350 Mo. 1021, 1032, 169 S.W.2d 697, 700 (lst col.); State v. Myers, 322 Mo. 48, 51, 14 S.W.2d 447, 448; State ex rel. McAllister v. Slate, 278 Mo. 570, 576, 214 S.W. 85, 87, 8 A.L.R. 1226. The fact is, however, that the legislature has referred to both the change of place of trial and the change of judge as 'change of venue'. The circumstance that an inaccurate title may describe the thing sought in no way changes the fact that the question must initially depend upon the meaning to be ascribed to the words 'civil suit'. But it is important to bear in mind that two different things are contemplated in the same statute, viz., change of place of trial and change of judge, and that we are here concerned with only one of them, 'change of judge'.

In Cole v. Cole, 89 Mo.App. 228, a divorce decree rendered in 1898 awarded custody of a minor daughter to plaintiff mother. In 1900, defendant moved to modify the decree as to custody. Defendant's subsequent application for change of venue was sustained, place of trial changed, and, after hearing, custody awarded plaintiff. On appeal it was urged that the judgment of the trial court was void because no change of venue was permissible and thus the court to which the case went on change of venue had no jurisdiction to enter a judgment. In that case, the court of appeals, in discussing the question of whether a change of venue was proper, said: 'This is to be answered by ascertaining whether the motion can be considered a new suit, because changes of venue may only be awarded in suits. R.S.1899, sec. 818. (Section 818 is the same as RSMo 1949, Sec. 508.090.) * * * If the proceeding for an alteration of the decree in divorce cases, concerning the custody of the children, is a continuation of the original action, there can be no change of venue allowed. Sutton v. Cole, 155 Mo. 206 . * * * All proceedings of an ancillary character, and designed to effectuate or change a decree already entered, are commonly regarded as part of and incidental to the original suit. * * * We conclude that the motion or petition in the present case, for an alteration of the judgment in favor of the plaintiff, was not a new suit and that a change of venue was inadmissible.' 89 Mo.App. 233, 234. (Italics and parenthetical insertion ours.)

Sutton v. Cole, 155 Mo. 206, 55 S.W. 1052, 1053, cited a authority in Cole v. Cole, supra, for the proposition that if a proceeding 'is a continuation of the original action, there can be no change of venue allowed', held: that a scire facias to revive a judgment was not a 'civil cause' within the meaning of RSMo 1889, Sec. 6240, providing in part: 'Either party shall be entitled to a change of venue in any civil cause pending before a justice of the peace, if he shall, * * *', etc. It was said in the Sutton case that a proceeding to revive a judgment is a continuation of the old action 'and merely ancillary thereto'; that it was a proceeding in the same action and not a new suit.

In Robinson v. Robinson, 268 Mo. 703, 186 S.W. 1032, a motion was field to modify a divorce decree by inserting therein an allowance for the education and maintenance of a minor child. An application for change of venue was overruled. We disposed of the contention that the court erred in overruling the application for change of venue with these words: 'There is no merit in the contention that error was committed in refusing the appellant a change of venue. The motion for the modification of the decree was but a continuation of the original action, and hence was not 'a suit' within the meaning of the statute authorizing changes of venue. Section 1927, R.S.1909; Cole v. Cole, 89 Mo.App. 228.' 186 S.W. 1034.

In State ex rel. Reece v. Moore, Mo.App., 158 S.W.2d 747, the Springfield Court of Appeals in a proceeding for prohibition, reiterated, on the authority of Cole v. Cole, supra, that a change of venue would not lie on a motion to modify a decree of divorce.

It is apparent that the decision in Cole v. Cole, supra, adhered to in Robinson v. Robinson, supra, and State ex rel. Reece v. Moore, supra, is the result of construing the words 'civil suit' in Section 508.090, supra (Sec. 818, RSMo 1899), as meaning 'new suit' or 'original action'. This is demonstrated by the language in Cole v. Cole, supra, where it is specifically ruled that unless the motion to modify was a 'new suit' it was not a 'suit' and therefore a change of venue did not lie. In other words, the conclusion in Cole v. Cole, supra, is based upon the premise that a 'suit' as referred to in Section 508.090 means only a 'new suit' in the sense of an 'original action'. Proceeding from this premise, the court concluded that inasmuch as a motion to modify is a continuation of an original action, it is not a 'new suit', and therefore not a 'civil suit' within the meaning of the section.

Long prior to the date of our opinion in the Robinson case, supra, we had held that 'suit' as used in the change of venue section means any proceeding for the redress of injury or the recovery of a right, and that the word 'civil' used in connection with the word 'suit' is in contradistinction to a 'criminal case'. 'Civil suit' then, in its broad aspect, means a proceeding by which rights of private individuals are protected or enforced. State ex rel. Kochtitzky v. Riley, 203 Mo. 175, 185-188, 101 S.W. 567, 568, 569, 12 L.R.A.,N.S., 900. See also: State ex rel. Bixman v. Denton, 128 Mo.App. 304, 312, 107 S.W. 446, 448; In re Heath's Assignment, 136 Mo.App. 347, 351, 117 S.W. 125, 126.

The...