Koehler v. Criddle

• Decision Date: 13 March 1888
• Citation: 30 Mo.App. 34
• Parties: JOSEPH KOEHLER, Appellant, v. JOHN A. CRIDDLE, Respondent.
• Court: Missouri Court of Appeals

30 Mo.App. 34

JOSEPH KOEHLER, Appellant, v. JOHN A. CRIDDLE, Respondent.

Court of Appeals of Missouri, St. Louis.

March 13, 1888

APPEAL from the Mississippi Circuit Court, HON. H. C. O'BRYAN Judge.

Affirmed.

WILSON CRAMER, for the appellant: When, upon defendant's first application for a change of venue, based on the alleged prejudice of the judge and the undue influence of the opposite party over his mind, Judge Wilson, the regular common-pleas judge, vacated the bench, and a special judge was elected and sworn to try the cause, defendant's right to a change of venue was exhausted under the act of 1881, and his second application should have been overruled. Sess Acts, 1881, p. 176; Barnes v. McMullins, 78 Mo. 260. The application for a change of venue presented to the special judge did not comply with the requirements of the law. (1) Because there was no affidavit as to the truth of the petition, but simply a verification upon the " best knowledge and belief" of the applicant. (2) Because it is not alleged in the petition, nor in an affidavit annexed that the applicant had just cause to believe that he could not have a fair trial on account of the causes assigned for a change of venue. Rev. Stat., sec. 3732; Lee v. Smith, 84 Mo. 306. The statute fixes the time within which a defendant must apply and in the case at bar that time had elapsed. Rev. Stat., 1879, sec. 3731; State to use v. Matlock, 82 Mo. 455.

R. B. OLIVER and W. H. MILLER, for the respondent: A defective application for a change of venue will not render the order making it a nullity. Potter v. Adams, 24 Mo. 159; State v. Worrell, 25 Mo. 205; State v. Knight, 61 Mo. 373. No notice of the intended application was necessary, nor, under the circumstances detailed in the application, could a notice have been given. Dowling v. Allen, 88 Mo. 293; Reid v. State, 11 Mo. 379; Corpenny v. City, 57 Mo. 88; Rev. Stat., 1879, sec. 3731; Fugate v. Carter, 6 Mo. 267. The disqualification of the regular judge and election of a special judge was not a change of venue within the meaning of the law. Howard v. Lillard, 17 Mo.App. 228; Carter v. Prior, 78 Mo. 222; Grant v. Holmes, 75 Mo. 109. Has the appellant in this case any standing in this court? Will an appeal lie from the judgment of a court overruling a motion of this character? We maintain not; especially where a party quietly stands in court and sees his case dismissed for want of prosecution. Bank v. Reilly, 8 Mo.App. 544; State v. County Court, 58 Mo. 583; Ruby v. Shain, 51 Mo. 116.

OPINION

THOMPSON J.

In this case the defendant filed a motion for a change of venue, on the ground of the prejudice of the judge of the court. Thereupon an election was ordered, and a special judge was elected under the statute. Of this no complaint is made. At a subsequent term of the court the defendant filed another motion for a change of venue, on the ground that the opposite party had an undue influence over the inhabitants of the county. This motion was granted by the special judge, and the venue was thereupon changed to Mississippi county. The plaintiff appeared before the circuit court of that county and moved to remand the cause, for the reason that the change of venue had been improperly granted. This motion was denied by the court, and the plaintiff saved his exception and declined to proceed further in the cause; whereupon the court dismissed it for want of prosecution. The plaintiff prosecutes this appeal and assigns for error the refusal of the circuit court of Mississippi county to remand the cause.

I. If the change of venue was improperly granted, the circuit court of Mississippi county acquired no jurisdiction of the cause unless the plaintiff acquiesced in the order...