Smith v. St. Louis & S. F. Ry. Co.

• Decision Date: 10 May 1888
• Citation: 31 Mo.App. 135
• Parties: J. P. SMITH, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellant.
• Court: Kansas Court of Appeals

31 Mo.App. 135

J. P. SMITH, Respondent, v. ST. LOUIS & SAN FRANCISCO RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

May 10, 1888

APPEAL from Jasper Circuit Court, HON. M. G. MCGREGOR, Judge.

Affirmed.

The case is stated in the opinion.

E. D KENNA and E. C. O'DAY, for the appellant.

I. Section 3729, Revised Statutes, provides that " a change of venue may be awarded in any civil suit to any court of record," for any one of the statutory reasons; and this case, being a civil case, comes under its provisions. 25 Mo 526. It also applies to a cause instituted before a justice of the peace and appealed to the circuit court and has been so held repeatedly in this state. The case of Smith v Monks, 25 Mo. 107, was brought before a justice of the peace of Howell county, and from there appealed to the circuit court of said county, from which the cause was removed by change of venue to the circuit court of Ozark county, and from the last-named court the venue was again changed and the case removed to the circuit court of Webster county, where a trial was had and a judgment rendered, from which an appeal was taken to the Supreme Court. The Supreme Court affirmed the judgment of the trial court and overruled appellant's objection that the trial court had no jurisdiction of the cause. In the case of Yalabusha Co v. Corby, 11 Miss. 529, on appeal from the board of police, the cause was carried into the circuit court of Yalabusha county, and on application the venue was changed to the county of Carroll, where a trial occurred, from which court a writ of error was sued out to the High Court of Errors and Appeals. The latter court reversed the trial court for the reason that the change of venue was not authorized by law. The statute of Mississippi (Howard & Hutchison 1840, p. 592) authorizing a change of venue is as follows: " When either party to any civil action instituted in a circuit court of this state shall desire to change the venue, he, she, or they shall make oath," etc. This statute authorizing the change is restricted in its very terms to actions instituted in a circuit court. The Mississippi statute uses the language " when either party to any civil action instituted in a circuit court of this state desires to change the venue he, she, or they shall make oath," etc., while our statute uses the language, " a change of venue may be awarded in any civil suit to any court of record for any of the following causes," etc. The one statute expressly prohibits the awarding of a change of venue except in causes instituted in a circuit court, while the other expressly provides " that a change of venue may be awarded in any civil suit to any court of record." Any construction of section 3729, Revised Statutes, 1879, which restricts it to cases instituted in the circuit court does violence, not only to its terms and spirit, but also to reason and common sense.

II. The lower court erred in overruling plaintiff's application for change of venue. The application complied with the provisions of the statute both as to recitals and verifications, and the court had no discretionary power in the matter, but was bound to grant the prayer of appellant for a change of venue. The statute leaves no discretion to the court to refuse to change the venue. The mandate of the statute, when its requirements have been observed, is peremptory. The court has no discretion, and when a party moving for a change of venue brings himself within its provisions, he is entitled to its benefits, and he is not dependent upon the caprice of the trial judge. The court must grant the change of venue. Frelegh v. State, 8 Mo. 607; Reed v. State, 11 Mo. 380; Dowling v. Allen, 88 Mo. 293; Mix v. Kepner, 81 Mo. 93; Shattuck v. Meyers, 13 Ind. 46; 36 Iowa 68; 7 Wis. 155; Edwards v. State, 25 Ark. 445. " It is error to overrule a motion for a change of venue in a civil case where the affidavit on which the motion is based conforms to the statute." " The court has no discretion in civil suits." Walsh v. Ray, 38 Ill. 31.

III. Reasonable notice of the application for change of venue was given, and this is all that is required by the law. Reed v. State, 11 Mo. 379; Corpenny v. Sedalia, 57 Mo. 88.

IV. The application was not too late. Hewger v. Kipp, 31 Kan. 636; Corpenny v. Sedalia, 57 Mo. 88; Hoke v. Applegate, 88 Ind. 530.

THOMAS & HACKNEY, for the respondent.

I. The pretended notice was, in fact, no notice. It was proper for the court to disregard it as being neither reasonable nor sufficient. No date was specified at which the application would be made.

II. The application came too late. The filing of the affidavit and bond for appeal with the justice was an entrance of appearance in the case by the appellant. Sess. Acts, 1885, p. 187. The appellant was then in court for all purposes, and if the inhabitants of the county were prejudiced against appellant, it could have given notice and made application for change of venue to the circuit judge in vacation. Rev. Stat., 1879, secs. 3732, 3733. " When cause for change of venue exists, the application should be made at the earliest opportunity; and if the knowledge thereof is acquired in vacation, the application should be made to the judge at chambers." Moss v. Johnson, 22 Ill. 633; State to use v. Matlock, 82 Mo. 457. There is nothing in the application to indicate that the appellant did not have knowledge of the cause for a change prior to the first day of the term of the circuit court. The appellant certainly had knowledge of the existence of the cause for a change, if any existed, on the first day of the term when the pretended notice was given, and the application should have been made earlier than the third day of the term, when the cause was for trial, and witnesses had been subpœ naed and were in attendance. And as to whether the application was filed in time was a question resting in the sound discretion of the trial court. State to use v. Matlock, 82 Mo. 457.

III. The application is insufficient in averments. Neither the petition nor the affidavit sets forth when appellant obtained its information and knowledge of the existence of the alleged prejudice of the inhabitants. Prior to the revision of 1879 the statute did not require the applicant to state when the information and knowledge of the existence of the cause alleged was received. Gen. Stat., 1865, p. 634, sec. 3. But since the amendment of 1879, this must appear either in the petition or affidavit in every such case. Rev. Stat., sec. 3732. The right to change of venue is purely statutory, and to authorize a change the party applying must comply with all the terms of the statute. Huthsing v. Maus...