Parker v. Moody, 54575

• Decision Date: 10 November 1969
• Docket Number: No. 54575,54575
• Citation: 446 S.W.2d 596
• Parties: Merle Eugene PARKER, Relator, v. Hon. Garner L. MOODY, Judge of the 38th Judicial Circuit of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 596

446 S.W.2d 596

Merle Eugene PARKER, Relator, v. Hon. Garner L. MOODY, Judge of the 38th Judicial Circuit of

Missouri, Respondent.

No. 54575.

Supreme Court of Missouri, En Banc.

Nov. 10, 1969.

Merle Eugene Parker, in pro. per.

Clyde Rogers, Gainesville, for respondent.

FINCH, Judge.

This is an original proceeding in mandamus. The sole issue presented is the propriety of the action of respondent judge in permitting opposing counsel to select the county to which a case is sent on change of venue taken pursuant to Supreme Court Rule 51.06 (all references are to V.A.M.R.). We issued an alternative writ of mandamus. We now make it peremptory.

Relator herein filed suit for damages in Ozark County. From an adverse judgment on his original trial he appealed to this court, which reversed and remanded for a new trial. Parker v. Wallace, Mo., 431 S.W.2d 136.

Thereafter, pursuant to Rule 51.06, relator filed in the Circuit Court of Ozark County a verified petition for change of venue and change of judge. That application was sustained and, over the objection of relator, the venue changed to Douglas County.

In response to the alternative writ of mandamus and relator's petition for writ of mandamus which the alternative writ incorporated, respondent filed a return which stated merely that in granting the change of venue to Douglas County, respondent had exercised his judicial discretion and hence the writ should be denied. The return did not deny any allegations of the alternative writ or of the petition for mandamus.

Relator's petition for mandamus, after stating that his verfied petition for change of venue alleged undue influence of defendant over the inhabitants of Ozark County and over the mind of the judge, then contains the following paragraph:

'3. That relator, in addition, ser forth in his petition for change of venue certain unusual facts concerning conditions and circumstances existing within the 38th Judicial Circuit, and more particularly in Douglas County, which joins Ozark County on the north, as follows:

'a. That counsel for the opposite party has knowledge, or a strong belief that he could gain an advantage over Plaintiff by obtaining a change of venue to Douglas County, and that he expressly revealed this fact following the original trial of this cause, during an 'off-the-record' exchange, in the following words: 'I thought Mr. Parker might ask for a change of venue, and if he had, I was going to ask it to be transferred to Douglas County because I understand he has raised hell down there, too.'

'b. That Plaintiff now has pending on appeal to the Supreme Court of Missouri a civil suit in the amount of two hundred and fifty thousand dollars ($250,000.00) against the Chamber of Commerce of Ava, Missouri, members of which include a large number, if not a majority, of the citizens of Douglas County.

'c. That said suit was widely publicized in newspaper and radio accounts throughout all of the counties in the 38th Judicial Circuit and created such widespread controversy that it would be impossible to obtain a jury of twelve completely unprejudiced persons anywhere in the 38th Judicial Circuit.'

When the petition for change of venue containing the above allegations was called for disposition, relator again called to the court's attention the special situation in Douglas County and urged the court to send the case to an adjoining circuit, such as Greene County, containing a more dense population. In response to that request, respondent judge advised relator that it was his custom to permit opposing counsel to choose the county to which the case is to be transferred. The judge then turned to Mr. Rogers, attorney for defendant, and said, 'Where do you want it to go, Clyde?' to which Mr. Rogers replied, 'Douglas County.' Thereupon, the court, over relator's objection, ordered the case transferred to Douglas County, and stated that he would request the Supreme Court to designate a special judge to hear the case in that county.

Supreme Court Rule 51.07 states, in part, as follows: 'If notice for a change of venue shall have been given to the adverse party or his attorney...