Jenkins v. Hill

Decision Date31 July 1874
PartiesJ. W. JENKINS, Respondent, v. E. D. HILL, et al., Appellants.
CourtMissouri Supreme Court

Appeal from Jasper County Court of Common Pleas.

E. Y. Mitchell, for Appellants.

I. The application for the change of venue was in strict compliance with statute, and the court had no discretionary power in the premises, but was legally bound to grant the prayer of appellants for the change of venue. (Freleigh vs. State, 8 Mo., 606; Wagn. Stat., p. 1355, Ch. 142, §§ 2, 3.)

II. The rule of the Circuit Court is an abortive effort by the court below to legislate, and is not sanctioned by reason or law. (See Wagn. Stat., supra; Calhoun vs. Crawford, 50 Mo., 458, 461.)

III. The court should have changed the venue and ought to have sustained appellant's motion to set aside, etc. (Bailey vs. Kimbrough, 37 Mo., 182-4; State, ex rel., Duncan vs. Price, 38 Mo., 382; Gale vs. Michie, 47 Mo., 326; §§ 1, 2, 3 Wagn. Stat., Ch. 142.)

Nathan Bray, for Respondent.

VORIES, Judge, delivered the opinion of the court.

This action was founded on a promissory note alleged to have been executed by the defendants to the plaintiff for the payment of three hundred and thirty-three dollars. The petition was in the usual form, and the summons made returnable to the November term of the Greene Circuit Court, which was to commence on the first Monday in November, 1871. The defendants were duly served more than fifteen days before the first day of the term.

On the first day of the term the judge of the court not being able to be present to hold the court, he, in pursuance of the statute (Wagn. Stat., p. 421, § 23), notified the sheriff of the county to adjourn said court until the second Monday in November, 1871, which was accordingly done. On said second Monday of November, 1871, the court was convened in the usual way, the same being the 13th day of said month, when the court made the following order of record, to-wit:

“Ordered by the court, that the time of pleading be extended until the sixth day, except in all cases which may be called for trial before the sixth day.” This case was set for hearing on the first day of the term, on the docket as made out by the clerk of the court.

The defendant, Williamson, made no appearance. The defendant, Hill, on the third day of the adjourned term appeared and filed his application and affidavit for a change of the venue of the cause, setting forth as cause for said change, “that the inhabitants of said county of Greene are so prejudiced against him, that he cannot have a fair and impartial trial of said cause in said county.”

This petition was verified by the affidavit of said Hill, in which he states that the facts stated in the petition are true, and that the inhabitants of Greene County were so prejudiced against him that he could not have a fair and impartial trial of said cause in said county.

On the fourth day of said adjourned term the cause came on to be heard, when the defendant presented his said petition for a change of venue to the court, and the plaintiff objected to the granting of said petition by the court for the reasons; “First--That the petition and affidavit were not filed on or before the day for which said cause was set for trial, as required by the rules of the court; Second--That the grounds of belief of the affiant are not set forth in the petition or affidavit as required by the rules of the court. The rules of court referred to, provide that an application for a change of venue must be made at least as early as the day on which the case is set for trial, and that the petition shall set forth the facts with grounds of the belief as to the facts on which the application is founded supported by the affidavit of the party.

No question was made as to the plaintiffs having proper notice of the petition or motion for a change of venue. The court overruled the defendant's motion for that purpose. The defendant, Hill, excepted to the ruling of the court and refused to answer or take any further action in the case in said court. The court rendered a judgment against the defendant for the amount of the note sued on with interest. This final judgment does not appear in the record, but the parties in this court agree by stipulation in writing that the judgment was rendered, and that it is to be considered as a part of the record.

The said defendant, in due time, filed his motion to set aside...

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8 cases
  • State ex rel. Kansas City Public Service Co. v. Waltner
    • United States
    • United States State Supreme Court of Missouri
    • 25 Marzo 1943
    ...... 322; LaGrange Elevator v. Richter, 129 S.W.2d 22;. Douglass v. White, 134 Mo. 228; Secs. 1060, 2121, R. S. 1939; Laws 1905, p. 121; Jenkins v. Hill, 57 Mo. 122. (3) The Trinastich and Kassebaum applications for change. of venue to another county were insufficient upon their face. and ......
  • State ex rel. Kansas City Pub. Serv. Co. v. Waltner, 37566.
    • United States
    • United States State Supreme Court of Missouri
    • 25 Marzo 1943
    ...Elevator v. Richter, 129 S.W. (2d) 22; Douglass v. White, 134 Mo. 228; Secs. 1060, 2121, R.S. 1939; Laws 1905, p. 121; Jenkins v. Hill, 57 Mo. 122. (3) The Trinastich and Kassebaum applications for change of venue to another county were insufficient upon their face and were not supported by......
  • State ex rel. Scott v. Smith
    • United States
    • United States State Supreme Court of Missouri
    • 15 Junio 1903
    ......518; In re Bowman, 7 Mo.App. 568. (b) Too. late after trial begun: Junior v. Railroad, 127 Mo. 79. (c) Too late after answer day: Jenkins v. Hill, . 57 Mo. 122. (d) Too late because shows delay after knowledge. of causes: State v. Mallock, 82 Mo. 455; Wolf v. Ward, 104 Mo. 127; ......
  • Laird v. Pan-American Lumber Co.
    • United States
    • Court of Appeal of Missouri (US)
    • 30 Enero 1922
    ...... Section 1359, R. S. 1919; Junior v. Missouri Elec. Light. & Power Co., 127 Mo. 79, 29 S.W. 988; Jenkins v. Hill, 57. Mo. 122. . .          It is. insisted that the allowance to the receiver is excessive. We. are unable to agree with this ......
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