State ex rel. Bd. of Regents of Southwest Missouri State University v. Bonacker

• Decision Date: 23 January 1989
• Docket Number: No. 15912,15912
• Parties: 52 Ed. Law Rep. 422 STATE of Missouri ex rel. the BOARD OF REGENTS OF SOUTHWEST MISSOURI STATE UNIVERSITY, Relator, v. Honorable Donald E. BONACKER, Judge of the Circuit Court of Greene County, Division 3, Respondent.
• Court: Missouri Court of Appeals

Page 341

765 S.W.2d 341

52 Ed. Law Rep. 422

STATE of Missouri ex rel. the BOARD OF REGENTS OF SOUTHWEST MISSOURI STATE UNIVERSITY, Relator, v. Honorable Donald E. BONACKER, Judge of the Circuit Court of Greene County, Division 3, Respondent.

No. 15912.

Missouri Court of Appeals,

Southern District,

En Banc.

Jan. 23, 1989.

Motion for Rehearing or Transfer to

Supreme Court Denied Feb. 3, 1989.

Application to Transfer Denied March 14, 1989.

Lee Chestnut, Springfield, for relator.

Glenn A. Burkart, Mann, Walter, Burkart, Weathers & Walter, Springfield, for respondent.

ORIGINAL PROCEEDING IN PROHIBITION

CROW, Judge.

The Board of Regents of Southwest Missouri State University ("the Board") brings this original proceeding in prohibition seeking a writ barring respondent, a judge of the Circuit Court of Greene County, from taking further action in case number CV185-972-CC-3 styled "Southwest Missouri State University, Plaintiff, vs. George D. Harriman, Defendant," except entry of an order granting an application for change of judge.

The record (RULE 84.24 )¹ demonstrates that on July 31, 1985, respondent entered judgment in case number CV185-972-CC-3 ("the underlying case") in favor of Southwest Missouri State University ("SMSU") and against George D. Harriman ("Harriman") in the aggregate amount of $11,159.05, to bear interest at three per cent per annum, plus costs.

Almost three years later, on May 10 and 11, 1988, SMSU caused writs of garnishment in aid of execution to be issued to American National Insurance Company ("American National") in the underlying case. The "return dates" of the writs were, respectively, August 9 and 11, 1988.

On June 21, 1988, Harriman and his wife filed a "motion to intervene" in the underlying case, which motion was granted by respondent July 7, 1988. ²

On August 19, 1988, SMSU filed an application for change of judge in the underlying case. Ten days later respondent announced the application would be denied on September 2, 1988, unless respondent was "directed otherwise by extraordinary writ."

The Board filed its petition for writ of prohibition with us September 1, 1988; our preliminary order in prohibition (Rule 97.05) was issued to respondent the next day. Respondent, in due time, filed his answer, and briefs were subsequently filed by the Board and by respondent. ³

The Board relies on Rule 51.05 in support of its argument that respondent lacks authority to take any further action in the underlying case other than granting SMSU's application for change of judge. Rule 51.05 provides, insofar as pertinent to the issues before us:

"(a) A change of judge shall be ordered in any civil action upon the filing of a written application therefor by any party or by his agent or attorney....

(b) The application must be filed within thirty days after the answer is due to be filed if the trial judge is designated at the time the answer is due........

(d) Application for change of judge may be made by one or more parties in any of the following classes: (1) plaintiffs; (2) defendants; (3) third-party plaintiffs (where a separate trial has been ordered); (4) third-party defendants; (5) intervenors. Each of the foregoing classes is limited to one change of judge and any such change granted any one or more members of a class exhausts the right of all members of the class to a change of judge, with this exception: in condemnation cases involving multiple defendants, as to which separate trials are to be held, each such separate trial to determine damages shall be treated as a separate case for purposes of change of judge.

(e) Upon the presentation of a timely application for change of judge, the judge shall promptly sustain the application...."

The Board asserts that while garnishment "is technically not the institution of a new suit," it is nonetheless "similar to an ordinary lawsuit," as the garnishor's interrogatories, the garnishee's answers thereto, and the garnishor's "denials" ⁴ of the answers serve "as the equivalent of the pleadings to frame the issues." The Board's position is supported by Frohoff v. Casualty Reciprocal Exchange, 113 S.W.2d 1026, 1028-30 (Mo.App.1938), where a judgment in favor of a garnishor (a plaintiff attempting to collect a money judgment) against a garnishee (an insurance company that had allegedly issued a policy of liability insurance to one of the judgment debtors) was held to be a final judgment reviewable by an appellate court on writ of error.

The Board emphasizes that paragraph "(e)" of Rule 51.05, quoted earlier, provides that upon presentation of a timely application for change of judge, the judge shall promptly sustain it. The Board insists its application for change of judge was timely under paragraph "(b)" of Rule 51.05, also quoted earlier, which provides that an application for change of judge must be filed within 30 days after the answer is due to be filed if the trial judge is designated at the time the answer is due. The Board points out that the only answers due in garnishment proceedings are the verified answers of the garnishee to the interrogatories of the garnishor, which answers are due within ten days after the return date of the writ of garnishment. Rule 90.13(b).

As reported earlier, the return dates of the writs of garnishment in the underlying case were August 9 and 11, 1988, respectively, and SMSU's application for change of judge was filed August 19, 1988.

Respondent contends the Missouri Rules of Civil Procedure do not provide a method for change of judge in garnishment proceedings. Respondent emphasizes that paragraph "(d)" of Rule 51.05, quoted earlier, enumerates sundry classes of litigants who may apply for change of judge, and that neither garnishors nor garnishees are listed. ⁵ Respondent concedes that "a garnishor may be either a successful plaintiff or a successful counterclaiming defendant in the main case," but asserts that the words "plaintiffs" and "defendants" in paragraph "(d)" of Rule 51.05 do not solve the problem of "whether a change of judge may be allowed in a subsequent garnishment proceeding."

Neither party cites, and our independent research has not found, a Missouri case deciding whether Rule 51.05 authorizes a change of judge upon application by a garnishor in a garnishment proceeding. There are, however, cases helpful by analogy.

State ex rel. Logan v. Peters, 723 S.W.2d 35 (Mo.App.1986), arose from an action by a prisoner under Rule 27.26 (now repealed) to vacate two robbery convictions. The circuit judge denied relief without an evidentiary hearing. On appeal the judgment was reversed for lack of specific findings of fact and conclusions on all issues, and the cause was remanded for further consideration and entry of more complete findings of fact and conclusions of law. The prisoner promptly applied for a change of judge under Rule 51.05, Missouri Rules of Civil Procedure (17th ed. 1986), which at that time provided that such applications had to be filed at least 30 days before trial or within 5 days after a trial setting was made, whichever was later. The circuit judge declared he would deny the application unless prohibited, his logic being that no new trial had been mandated. The prisoner thereupon brought a prohibition action in the Western District of this Court. The Western District held it would be impossible for the circuit judge to make findings and conclusions on certain issues without a hearing, which would amount to a "trial" within the meaning of Rule 51.05, hence the prisoner's application for change of judge was timely and the circuit judge was barred from denying it. Id. at 36-37. The significance of Logan regarding the instant prohibition proceeding is that an action under former Rule 27.26 was a civil action, Rule 27.26(a), Missouri Rules of Criminal Procedure (17th ed. 1986), and a prisoner bringing such an action was designated a "movant" or a "petitioner." Appendix, Rule 27.26, Missouri Rules of Criminal Procedure (17th ed. 1986). Neither term appears in the list of classes of litigants set forth in paragraph "(d)" of Rule 51.05. The prisoner in Logan was nonetheless allowed a change of judge under Rule 51.05.

State ex rel. Horridge v. Pratt, 563 S.W.2d 168 (Mo.App.1978), arose from an action for dissolution of marriage in which the husband--the petitioner--appealed from the trial court's decree. The appellate court reversed the decree and remanded the cause for a new trial on the issue of maintenance for the wife. The husband filed a timely application for change of judge under Rule 51.05, and thereafter brought a prohibition action in the Western District of this Court to bar the judge from whom the change was sought from proceeding further in the case. The Western District held that as the remand was for a new trial on the question of maintenance, the husband's application for change of change should have been granted. At the time Horridge was decided, parties in marriage dissolution actions were characterized as "petitioner" and "respondent," § 452.320.2(1), RSMo Cum.Supp.1975, just as they are today. Neither term appears in the list of classes of litigants set forth in paragraph "(d)" of Rule 51.05. The husband in Horridge was nonetheless entitled to a change of judge under Rule 51.05.

We are persuaded by Logan and Horridge that if a garnishment proceeding is a "civil action" within the meaning of that term in paragraph "(a)" of Rule 51.05, the absence of the term "garnishor" from the list of classes of litigants in paragraph "(d)" of Rule 51.05 does not bar a garnishor from obtaining a change of judge in a garnishment proceeding.

In Crain v. Missouri Pacific Railroad, 640 S.W.2d 533 (Mo.App.1982), law partners McCarthy and Martin were representing claimants against a railroad. The law partnership was dissolved, after which Martin and a new partner continued to represent the claimants, ultimately filing suits which were resolved by a court-approved...