Leslie v. G. W. Chase & Son Mercantile Co.

• Citation: 98 S.W. 523,200 Mo. 363
• Parties: MATTIE ETTA LESLIE v. G. W. CHASE & SON MERCANTILE COMPANY, Appellant
• Decision Date: 22 December 1906
• Court: Missouri Supreme Court

98 S.W. 523

200 Mo. 363

MATTIE ETTA LESLIE v. G. W. CHASE & SON MERCANTILE COMPANY, Appellant

Supreme Court of Missouri, Division One

December 22, 1906

Appeal from Platte Circuit Court. -- Hon. A. D. Burnes, Judge.

Reversed and remanded (with directions).

Thomas F. Ryan and Rusk & Stringfellow for appellant.

The Platte Circuit Court erred in assuming jurisdiction of this cause. The order made by the judge of the Buchanan Circuit Court, purporting to transfer this cause to the Platte Circuit Court, was without authority of law and void and did not confer any jurisdiction upon the Platte Circuit Court. When the Buchanan Circuit Court sustained the application of the defendant for a change of venue and the parties agreed upon Judge Burnes, of the Platte Circuit Court, to try said cause, and he accepted said appointment and proceeded with the trial of said cause and made an order continuing said cause until the next term of court, he was then clothed with full authority to try the same and retained jurisdiction thereof until the final determination of the cause, and his powers and duties ceased only at the conclusion of the trial. Therefore, the order transferring this cause to the Platte Circuit Court is invalid and without any binding force as against these defendants. State v. Shipman, 93 Mo 157; State ex rel. v. Wear, 129 Mo. 624; State v. Shafer, 36 Mo.App. 691; State v. Spivey, 191 Mo. 108; State ex rel. v. Smith, 176 Mo. 90; State ex rel. v. Fort, 178 Mo. 518; Lee v. Power, 75 Mo. 472.

James W. Boyd for respondent.

The order made by the circuit court of Buchanan county on July 3 1903, granting appellant a change of venue to the circuit court of Platte county, was with authority, and was valid. R S. 1899, secs. 818-820-822 and 833. (1) Judge Burnes, who had been agreed upon by the parties as special judge to try the case in the circuit court of Buchanan county, absolutely refused, at all times, to do so. He announced in court in person his refusal to act, and put his refusal in writing and furnished it to said court before said order was made by the regular judge of said court. Judge Ramey had the right to make the order. There was nothing else for him to do. State v. Silva, 130 Mo. 440; State v. Hudspeth, 159 Mo. 178; State v. Gillham, 174 Mo. 671. (2) If there is any error in the action of the court in respect to a change of venue it was waived by the defendant because no exception was saved and no bill of exceptions embodying any objection or exception was made or filed in the circuit court of Buchanan county. Wright v. Kansas City, 187 Mo. 696; State v. Nave, 185 Mo. 133; State v. Lynn, 169 Mo. 671; State ex rel. v. McKee, 150 Mo. 233; Nichols v. Stevens, 123 Mo. 120; Stearns v. Railroad, 94 Mo. 321; Potter v. Adams' Executors, 24 Mo. 161. (3) The order accepting Judge Burnes' refusal to act and changing the venue was made at the same term of the court in which the application was filed. The court could at any time in the same term review its actions and make such orders as would best carry out the court's final view of the matter. (4) The defendant appeared in the circuit court of Platte county, filed its answer on the 17th day of August, 1903, and then went to trial before Judge Burnes, judge of said court, the same judge who declined to act as special judge in the circuit court of Buchanan county. The defendant asked for a change of venue, wanted Judge Burnes to try the case, and he did so. Under no view of the case, can the defendant now be heard to complain of the order changing the venue. (5) The defendant having failed to object or save any exceptions to the order changing the venue in the circuit court of Buchanan county, its right to object, if it ever had any, was lost. The defendant could not go to Platte county and make an objection to an order made in the circuit court of Buchanan county, when it had waived all objections to such order in the circuit court of Buchanan county. (6) In the final bill of exceptions no motion to remand is included or mentioned. If there was a term bill, and it is not included in the final bill of exceptions, nothing in the term bill is included or preserved in the record, and the action of the circuit court of Platte county, if it acted, at the August term, 1903, is not now open to review. Smith v. Baer, 166 Mo. 401; Pace v. Roberts, 103 Mo.App. 668.

OPINION

VALLIANT, J.

This is a suit for damages for personal injuries which plaintiff alleges she suffered through the negligence of defendant. The cause was begun in the circuit court of Buchanan county, and was assigned to Division No. 2 of that court. At the May term, 1903, an order was made and entered of record in that court transferring the cause to the circuit of Platte county, where it was tried and a judgment was rendered in favor of the plaintiff for $ 5,000, from which judgment the defendant has appealed.

The first question in the record is as to the validity of the order of the Buchanan Circuit Court directing the change of venue to Platte county. On that subject the record shows as follows:

May 22, 1903, defendant filed a motion in Division No. 2 of the Buchanan Circuit Court for a change of venue on the grounds that the judge of that division was prejudiced against the defendant and that the opposite party had an undue influence over his mind. The motion was in due form and supported by the affidavit required by statute. On the next day the plaintiff filed a paper referring to defendant's application for a change of venue and averring in that connection that the defendant had an undue influence over the mind of the judge in Division No. 1 of that court and that for that reason she could not have a fair trial in Division No. 1. The paper was signed by the plaintiff's attorney and verified by her own affidavit.

May 23rd an order of court was made and entered of record in words following, to-wit:

"Comes now the plaintiff by her attorney, and files motion to not transfer this cause to Division No. One; come now the parties plaintiff and defendant, by their respective attorneys, and the motion for change of venue, heretofore filed herein, is now taken up, considered by the court, and the same is by the court sustained. And now here the application of plaintiff asking that this cause be not transferred to the Judge of Division No. One of this court is at this time considered by the court and the same is by the court granted. And now here defendant deposits with the clerk of this court the sum of ten dollars to cover costs of said change of venue, and by agreement of attorneys Hon. A. D. Burnes, Judge of the Fifth Judicial Circuit, is called to try this cause."

June 19th of the same term Judge Burnes appeared and presiding in the court made the following order in the cause which was entered on the record of the court: "Now here this cause is by the court continued." That is the last appearance, so far as the record shows, of Judge Burnes in the case.

Afterwards, July 3rd, during the same term, the regular judge of that court, Division No. 2, without motion by either party, made an order, which was entered of record, setting aside the order of continuance that Judge Burnes had made and ordered that the venue for the cause be changed to Platte county and transferred it to the Platte Circuit Court. The record says that on July 6th, during the same term, the defendant presented its bill of exceptions to that action of the court, which the court refused to sign, stating as the reason therefor that it was untrue.

When the cause came before the Platte Circuit Court the defendant appeared and moved the court to remand it to the Buchanan Circuit, and in support of the motion filed an affidavit of one of its attorneys in which among other things it was stated that Judge Burnes had accepted the call to try the case and had assumed jurisdiction, had in fact tried the Dakan case, which was a companion case to this, depending on the same state of facts, had heard the arguments of counsel on certain motions common to both cases, and after trying the Dakan case made the order of his own motion to continue this case to the next term and took his departure, and that at the time the order changing the venue to Platte county was made Judge Burnes was absent from the State, temporarily in Montana. The motion was overruled and exception taken, which was duly preserved in the bill of exceptions. The trial then progressed in the Platte Circuit Court and, as already stated, resulted in a judgment for plaintiff for $ 5,000.

The order made by the regular judge of Division No. 2 transferring the cause to the Platte Circuit Court is in these words:

"Now at this time this cause coming before the court for further consideration and disposition under the defendant's application for a change of venue, which was made and filed herein on May 22nd, and during this term of this court, which said application for change of venue was partially considered by this court on May 22nd, and then sustained, but at that time no change of venue was granted by the court because the attorneys of both plaintiff and defendant then and there in open court agreed, which agreement was entered of record that the Hon. A. D. Burnes, Judge of the Fifth Judicial Circuit of this State, might try said cause; and now the parties to the suit being present by their respective attorneys, and it appearing and being made known to this court that the Hon. A. D. Burnes, Judge of the Circuit Court of the Fifth Judicial Circuit of Missouri, has at all times since said agreement between the said attorneys was made and entered of record, on May 22nd, refused and declined to preside or act or sit as judge in said cause, or to proceed with it in any manner, or to try it.

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