Little Tarkio Drainage Dist. No. 1. v. Richardson

• Decision Date: 31 March 1910
• Citation: 126 S.W. 1021,227 Mo. 252
• Parties: LITTLE TARKIO DRAINAGE DIST. NO. 1. v. RICHARDSON et al.
• Court: Missouri Supreme Court

126 S.W. 1021

227 Mo. 252

LITTLE TARKIO DRAINAGE DIST. NO. 1. v. RICHARDSON et al.

Supreme Court of Missouri. Division No. 1.

March 31, 1910.

1. APPEAL AND ERROR (§ 248) — EXCEPTIONS — NECESSITY.

Errors to which no exception is taken are presumed to have been waived, if they are susceptible of being waived.

2. APPEAL AND ERROR (§ 248) — PROCEEDINGS BELOW — EXCEPTIONS — NECESSITY — JURISDICTIONAL ERROR.

Any error affecting the court's jurisdiction may be reviewed without exception being taken thereto.

3. VENUE (§ 71) — CHANGE — EFFECT OF APPLICATION.

An application for a change of venue does not affect the court's jurisdiction; it only losing jurisdiction upon making the order transferring the cause.

4. APPEAL AND ERROR (§ 248) — PROCEEDINGS BELOW — EXCEPTIONS — NONJURISDICTIONAL ERRORS.

Any error in calling in another circuit judge to sit upon an application for change of venue, instead of sending the case to another county, was not jurisdictional, and hence cannot be reviewed, in the absence of exception to the court's action.

5. JUDGES (§ 16) — SUBSTITUTE JUDGES — POWER TO APPOINT.

Under Rev. St. 1899, § 1678 (Ann. St. 1906, p. 1219), authorizing a circuit judge, when for any cause he is unable to hold any term or part of a term of his court, to request the judge of another county to preside in his place, if a circuit judge believed he should not try a case because of his opinion on the merits, he could request another circuit judge to preside in his place, though an application for change of venue was then pending.

Appeal from Circuit Court, Holt County; F. H. Trimble, Judge.

Proceedings by the Little Tarkio Drainage District No. 1 against John D. Richardson and others. From a judgment for plaintiff, defendants appeal. Affirmed.

E. J. Kellogg, T. C. Dungan, W. H. Richards, and H. K. White, for appellants. Petree Bros. and H. B. Williams, for respondent.

VALLIANT, J.

This was a proceeding in the circuit court of Holt county to incorporate the above-named drainage district under sections 8251, and following Rev. St. 1899 (Ann. St. 1906, p. 3889). The appellants, with others, being landowners in the district, filed objections to the incorporation, the proceeding resulted in a decree of incorporation, and Richardson and others have brought the cause here by appeal.

Appellants ask a reversal of the judgment on one point only; that is, the action of the court on their application for a change of venue. At the return term of the court appellants filed their application for a change of venue under section 818, Rev. St. 1899 (Ann. St. 1906, p. 789), based on their allegation that the petitioners for the incorporation had an undue influence over the mind of the judge of that court. After filing that application, and on the same day, they filed their objections to the proceeding. Afterwards, during the same term, and before any other action by the court in the matter, the court made the following order, which was duly entered of record: "Now, here at this time, William C. Ellison, judge of this court, for having an opinion as to the merits of the case, disqualifies himself from acting thereon, and the application for change of venue is sustained; and, it appearing to the court that the petitioners and the objectors are unable to agree upon any member of the bar to sit in the trial of said cause, or to the election of a special judge, it is ordered that said cause be set down for trial on Tuesday, September 22, 1908, and it is further ordered that Francis H. Trimble, judge of the Seventh circuit of the state be and is hereby requested to appear in this court on said date and sit in the trial of said cause, and it is further ordered that the clerk of this court notify the said Francis H. Trimble." On the day named, September 22, 1908, Judge Trimble, in compliance with the order, appeared in court, ascended the bench, and called the cause for trial. Thereupon appellants filed and presented a plea to the jurisdiction of the court as then constituted; that is, with Judge Trimble presiding. The plea starts out with: "Now come the objectors in the above-entitled cause, and now plead to the jurisdiction and authority of Judge Trimble now sitting in the hearing of said cause, and aver that the said judge has no right to hear, try, and determine the same, or in any manner act in the premises," etc. It then goes on to recite the filing of the application for a change of venue, and states that they deposited with the clerk the $10 required by the statute, and then recites the order of the court, which is above quoted, states that the court had no authority to call in another judge to try the cause in that court, but had only authority to change the venue to another county, and concludes with the statement that the order conferred no jurisdiction on Judge Trimble, but that the cause still remained in the jurisdiction of the court, with Judge Ellison to preside. On the hearing of that plea appellants offered in evidence their application for a change of venue, and the order of court above mentioned, the court overruled the plea, and appellants saved their exception. Then the court went on to try the cause, with the result already above stated.

When Judge Ellison made the order calling in Judge Trimble to try the cause, instead of ordering a change of venue to another county, as appellants contend he should have done, appellants did not except to that ruling, and no objection thereto appears until 20 days afterwards, when the judge who made the ruling had retired from the bench, and Judge Trimble had ascended. The only bill of exceptions in the record is one signed by Judge Trimble. Appellants' sole proposition now is that the court, with Judge Trimble presiding, had no jurisdiction to try the case, and that therefore the judgment is void. Appellants in their brief say that, since the action of Judge Ellison calling Judge Trimble to preside appears on the face of the record proper, it is reviewable on appeal, although no exception...