Kyger v. Koeper

• Decision Date: 12 April 1946
• Parties: Fred H. Kyger and Mrs. Fred H. Kyger, Respondents, v. John A. Koeper, Appellant
• Court: Missouri Court of Appeals

194 S.W.2d 51

238 Mo.App. 947

Fred H. Kyger and Mrs. Fred H. Kyger, Respondents, v. John A. Koeper, Appellant

Court of Appeals of Missouri, Springfield District

April 12, 1946

Rehearing Denied May 2, 1946.

Appeal from the Circuit Court of Lawrence County; Hon. Emory E Smith, Judge.

Reversed and remanded (with directions).

Wm J. B. Myres and Edward V. Sweeney for appellant.

After the appellant filed his return to the preliminary writ of prohibition, the respondents herein filed a motion for judgment on the pleadings. That motion was overruled. The respondents declined to reply, objected to the introduction of any evidence, and offered no evidence on their behalf. Therefore, all allegations in appellant's return must be taken as true. State ex rel. Farmer's Exchange Bank of Gallatin, Daviess County et al. v. Beals, Judge et al., 227 Mo.App. 643, 55 S.W.2d 1005; State ex rel. Anderson v. Kirkland, Probate Judge et al., 55 S.W.2d 697; State ex rel. American Pigment & Chemical Co. v. Shields, 141 S.W. 585. The justice court had jurisdiction of the parties and the subject-matter in the action between M. E. England and Omah England v. Fred H. Kyger and Mrs. Fred H. Kyger. The mere filing of a "Legislative Affidavit" by the Kygers did not oust the justice court of its jurisdiction. Sec. 1089, R. S. Mo. 1939; State v. Myers, 179 S.W.2d 72; State ex rel. Ford v. Hogan, 324 Mo. 1130, 27 S.W.2d 21; Carpenter v. Alton Railroad Company, 148 S.W.2d 68. The action of the justice court in rendering judgment and overruling the motion to set same aside, even if improper, was only error. The Kygers had a full and adequate remedy at law by appeal to correct that error, if any. They made no attempt to exercise this adequate remedy at law. Therefore the circuit court committed grave error in making the preliminary writ of prohibition absolute. State v. Myers, 179 S.W.2d 72; Delaney v. Police Court of Kansas City et al., 167 Mo. 667, 67 S.W. 589; State ex rel. Henry et al. v. Cracraft et al., 237 Mo.App. 194, 168 S.W.2d 953.

H. A. Gardner and James E. Sater for respondents.

By reason of filing the affidavit that a member of the Legislature was an attorney in said cause, and was in actual attendance at the session thereof, etc., the court was divested of jurisdiction to render judgment in said cause and it was likewise divested of jurisdiction to issue process to enforce said judgment. Section 96, Civil Code 1943, Session Acts 383; State v. Clark, 267 S.W. 413; State v. Myers, 179 S.W.2d 72. That part of the section of the statute directly applicable to this question is as follows: "And on the filing of such affidavit, the court shall continue such suit and any and all motions or other proceedings therein, of every kind and nature, including the taking of depositions, and thereupon no trial or other proceedings, of any kind or nature shall be had therein until the adjournment or recess for twenty days or more of the general assembly, nor for ten days thereafter. Such affidavit shall be sufficient, if made at any time during the session of the general assembly, showing that at the time of making the same, such party, attorney, solicitor or counsel is in actual attendance upon such session of the general assembly." Counsel for appellant, in attempting to quote this section, very conveniently omitted the above portion thereof, and under this section it is clear that the court has no jurisdiction to issue process to enforce the judgment, which he admits that he is threatening to do. This court in the case of State v. Clark, supra, held that the granting of a continuance was mandatory. The court said: "Legislature evidently intended to make it mandatory upon the trial court to grant a continuance when a proper affidavit was filed under what is now Sec. 1388, R. S. 1919. Counter-affidavits have no place under this section. We think this statute is a wholesome one. It is well known that any attorney must to some extent sacrifice his practice to serve as a member of the Legislature. The reason for the mandatory character of this statute is apparent, and our comment could not make it more wholesome." In the Myers case, supra, The Supreme Court approved the holding in the Clark case, and in so doing, said: "The State contends that the order of the trial court disclosed that it did not appear to the court that the attendance of Mr. Farrar was necessary to a fair and proper trial. We are of the opinion that our statute does not permit the trial court to decide that question. Note that it says that upon the filing of such affidavit the court shall continue such suit. . . ." Appellant cites the Myers case, but there is no way for counsel to properly read this case and get any consolation therefrom. Counsel also quotes from the Oklahoma decisions, as cited in the Myers case, but the court did not follow the Oklahoma decisions, but on the contrary said: "Our statute, section 1089, supra, does not permit such an interpretation. We cannot write an exception into the statute." In the Myers case, the State contended, as the counsel for appellant, that the decisions under the change of venue statute were controlling, but this theory was directly exploded by the Supreme Court on the motion for rehearing, in which it said: "We do not think the cases cited construing the change of venue statute, are controlling, because the purpose of the statute under consideration is materially different from the change of venue statute. We think respondent has overlooked the latter portion of section 1089, which reads as follows: 'Such affidavit shall be sufficient, if made at any time during the session of the general assembly, showing that at the time of making the same, such party, attorney, solicitor or counsel is in actual attendance upon such session of the general assembly.'" Counsel cites a number of cases in respect to change of venue in civil cases, but these cases are not applicable. Aside from the Supreme Court decision in the Myers case, the change of venue statute in respect to suits in circuit courts, is quite different from this statute. No provision is made that the court is divested of jurisdiction to further act in the case. Had the counsel been interested in elucidating this question they could have cited the statute in respect to change of venue before a justice of the peace. Section 2641, in respect to change of venue from justice of the peace, provides: "When such affidavit for a change of venue shall be filed, the Justice shall have no jurisdiction in the cause except to grant such change of venue." Under this section our courts have held that the judgment of the justice is void when rendered in face of the application for a change of venue. In the case of Doniphan v. Transue, 226 S.W. 635, the plaintiff instituted his suit before a justice of the peace. The defendant filed an application for a change of venue. The plaintiff induced the justice to dismiss said cause. Later the justice decided he was wrong and sent the case to another justice of the peace, and the court said: "It is apparent that the attempt of Justice Brown to dismiss the cause after the affidavit was filed, was of no force and effect." In State ex rel. Hazel v. Watkins, 253 S.W. 781, l. c. 783, the court said: "The order of appellant (justice of peace) attempting to send the cause to G. G. Bowen, a Justice of the Peace of Cooter Township was a nullity and the cause remains the same as if no order had been made. After the filing of an affidavit for a change of venue, a judgment for plaintiff was a nullity" (This is a justice of the peace case.) Baskowitz v. Guthrie, 99 Mo.App. 304. It is well settled in this State that the writ of prohibition is available to keep the court within the limits of its power or from exceeding its jurisdiction, or to prevent it from proceeding after it has lost jurisdiction. State ex rel. Buckingham Hotel Co. v. Kimmel, 183 S.W. 651; State ex rel. Gary Realty Company v. Hall, 17 S.W.2d 935; State ex rel. Fowler et al. v. Calvird, 93 S.W.2d 1108. This question seems to be so well settled that it will seem to be useless to cite other authorities. In the case of State ex rel. Gary Realty Company v. Hall, supra, the Supreme Court approved the following: "In modern practice, if the lower court is clearly without jurisdiction at all, either of the person or subject-matter, or of something collateral or incidental thereto, or, having jurisdiction, exceeds it, or insists in proceeding after it has lost jurisdiction, the writ will issue." In the case of State ex rel. v. Kimmel, supra, the court said: "But the case before us is one involving the question of usurpation of judicial authority, i. e., the exercise of jurisdiction in excess of respondent's judicial power and authority. The extraordinary remedy invoked is therefore appropriate and under the facts disclosed we see no good reason why it should be denied relator. So long as anything remains to be done to carry a judgment into effect the writ may go, and it may take on such form as the exigencies of the situation may demand." In the case of State ex rel. Fowler et al. v. Calvird, supra, the court said: "The court and respondent as judge thereof had no jurisdiction to render the judgment. Where such is the case, prohibition is always a proper remedy and is always available. The main object of this proceedings is to prevent the issuance of an execution against relators. If the judgment be void for want of jurisdiction in the court or the judge thereof to render it, there is no good reason why the enforcement of such judgment should not be prohibited and why our writ of prohibition is not available and should not be issued for that purpose." After the filing of the legislative affidavit the justice of the peace had no...