Manning v. Baxter

• Decision Date: 09 February 1940
• Citation: 136 S.W.2d 1074,281 Ky. 659
• Parties: MANNING et al. v. BAXTER, Judge.
• Court: Kentucky Court of Appeals

136 S.W.2d 1074

281 Ky. 659

MANNING et al. v. BAXTER, Judge.

Court of Appeals of Kentucky

February 9, 1940

Original proceeding in prohibition by I. S. Manning and another against William J. Baxter, Judge of the Madison Circuit Court, to prohibit defendant from proceeding with trial of a case.

Writ denied; petition dismissed.

Ross Ross & Bayer, and James S. Lackey, all of Richmond, A. T. W Manning, of McKee, and William Lewis, of London, for petitioner.

G Murray Smith, of Richmond, and Hubert Meredith, Atty. Gen for respondent.

FULTON Justice.

On November 13, 1938, Bev P. Lyttle was wounded in a fight in Manchester and died later in Laurel County from his wounds. On November 16, 1938, the petitioners, I. S. Manning and Edward M. Manning, together with one Hipshire, were indicted in Laurel County for his murder. Hipshire was tried and acquitted. Subsequent to his acquittal a petition for change of venue as to petitioners was filed by the Commonwealth's Attorney. Evidence was heard and a change of venue was granted to Madison County. The order granting the change of venue recites that oral objections were made, either by the Commonwealth or by the defendants, to transferring the case to all counties adjacent to Laurel and that these objections were sustained, whereupon the venue was changed to Madison County.

The petitioners appeared in the Madison Circuit Court and objected to its jurisdiction. Their objection was overruled, whereupon they made a motion to remand to the Laurel Circuit Court. Evidence was heard on this motion and it was overruled. This original proceeding was then instituted in this court against the respondent, Hon. William J. Baxter, Judge of the Madison Circuit Court, seeking a writ of prohibition against him to prohibit him from proceeding with the trial of the case and in effect to require him to remand the case to the Laurel Circuit Court.

The power conferred on this court by section 110 of the Constitution to exercise supervisory control over inferior courts by original writ has uniformly been restricted to cases in which the inferior court (1) lacks jurisdiction or is proceeding beyond its jurisdiction and (2) is proceeding erroneously within its jurisdiction and great and irreparable injury will result to the complaining party for which there is no adquate remedy by appeal or otherwise. Ledford v. Lewis, Judge, 227 Ky. 396, 13 S.W.2d 276; Litteral v. Woods, Judge, 223 Ky. 582, 4 S.W.2d 395; Duffin v. Field, 208 Ky. 543, 271 S.W. 596. The petitioners recognize this rule and do not seek to challenge it. To bring themselves within the terms of it and in order to manifest their right to the relief sought they contend (1) that the Madison Circuit Court is without jurisdiction to try them and (2) even though that court has jurisdiction nevertheless its action, if it tried the case, would be erroneous and they would suffer great and irreparable injury and have no adequate remedy by appeal.

Petitioners' contention that the Madison Circuit Court has no jurisdiction is based largely on their argument that the Laurel Circuit Court illegally changed the venue of the action to the Madison Circuit Court because Madison County is not a county adjacent to Laurel and no evidence was introduced on the motion for a change of venue showing valid objection to any adjacent county. The further argument is made that respondent's court has no jurisdiction because the petition for change of venue was insufficient in form and substance.

It is true that a change of venue can only be sustained to a nonadjacent county where objections are taken and sustained to all adjacent counties. Kentucky Statutes, section 1109; Conley v. Commonwealth, 229 Ky. 358, 17 S.W.2d 201. An examination of the evidence heard on the motion for a change of venue discloses that no evidence was heard by the trial court on the objections to the adjoining counties. Nevertheless, the order granting the change of venue recites that oral objections were taken to all adjoining counties and sustained by the court. Thus it is seen that the Laurel Circuit Court made a ruling and determined that valid objections to the adjacent counties had been made. Its action, therefore, pursuant to that determination, in selecting a nonadjacent county as the place of trial, can in no sense be said to be void--such action, if wrong, was only erroneous. The same considerations are applicable to the...