State ex rel. Cone v. Bruce

• Decision Date: 21 November 1932
• Citation: 55 S.W.2d 733,227 Mo.App. 631
• Parties: STATE OF MISSOURI EX REL., JOHN EDWARD CONE, RELATOR, v. LESLIE A. BRUCE, JUDGE, ETC., RESPONDENT
• Court: Kansas Court of Appeals

55 S.W.2d 733

227 Mo.App. 631

STATE OF MISSOURI EX REL., JOHN EDWARD CONE, RELATOR, v. LESLIE A. BRUCE, JUDGE, ETC., RESPONDENT

Court of Appeals of Missouri, Kansas City

November 21, 1932

Application by State of Missouri on the relation of John Edward Cone for writ of prohibition to Leslie A. Bruce, Judge of the Circuit Court of Johnson County. On respondents motion to quash preliminary writ.

Motion sustained and peremptory writ denied.

Russell Garnett, for relator.

M. D Aber for respondent.

OPINION

TRIMBLE, P. J.

Herein relator applied for a writ of prohibition directed to Leslie A. Bruce as Judge of the Circuit Court of Johnson County Missouri, to prevent him from proceeding further in a citation issued by him against relator for contempt.

Our preliminary rule to show cause why the writ should not issue was served upon respondent, who, in due time, made return thereto. A reply to the return was filed by relator in which the legal propositions in the return are denied and certain matters are alleged, tending to show no contempt was exercised or intended. A motion to quash the preliminary rule was filed.

The grounds stated in the petition for the writ are that on November 19, 1930, Floy Anne Cone, wife of John Edward Cone, filed in said Johnson County Circuit Court her petition for divorce and made application to the respondent as judge of said court for an order touching the care and custody of the infant child of said marriage sought to be dissolved, John Allen Cone, (said child being then aged about one year), and on April 14, 1931, an order was made by respondent as such judge, awarding the care and custody of said minor child, John Allen Cone, to Bertha Milbourn, (who, it appears from other documents and pleadings filed herein, is the mother of Floy Anne Cone and, of course, the grandmother of said infant).

That on December 10, 1931, Relator John Edward Cone, defendant in the divorce action, applied for a change of venue based on the alleged bias and prejudice of Judge Bruce, which application was on the 25th day of February, 1932, heard by the Johnson County Circuit Court (Judge Bruce), the record reciting that "the said application is taken up and by agreement of parties the court will call in Judge Dimmitt Hoffman, Judge of the Thirtieth Judicial Circuit to try said cause" . . . and this cause is transferred to Judge Dimmitt Hoffman, "of the Pettis County Circuit Court, who was to, and did, sit in Johnson County;" that on April 28, 1932, Judge Dimmitt Hoffman heard the petition and cross-bill in said divorce case and took the same under advisement until May 5, 1932, when he rendered judgment dismissing both petition and cross-bill; but the clerk failed and neglected to enter said judgment on said records; that on the 22nd day of June, 1932, Judge Bruce issued a citation or order to relator (defendant in said divorce action) to appear before him, said Judge Bruce, in the Circuit Court of Johnson County, at 10 A. M. on Friday, June 24, 1932, to show cause why petitioner should not be adjudged guilty of contempt for interfering with the custody of John Allen Cone, the infant hereinbefore mentioned, which citation recited among other things, the order of April 14, 1931, awarding the custody of the said infant child, John Allen Cone, during the pendency of said litigation to Bertha Milbourn, mother of the plaintiff, Floy Anne Cone, which order was duly recorded on the records of said court in Book B, at page 481; that said litigation has not yet terminated, and in disobedience to said order as to such custody, said John Edward Cone "did on June 18, 1932, wilfully and maliciously take, remove and abduct said infant child from the care and custody of (Bertha Milbourn) mother of Floy Anne Cone, against her will and without her consent and without any order of court."

The petition further charged that relator, in answer to said citation, appeared before Judge Bruce, in person and by counsel, and prayed for time to be granted him within which to file a return to said citation, whereupon said Judge Bruce made an order "wherein it requires your petitioner (relator) to restore said child to Mrs. Bertha Milbourn within twenty-four hours." A certified copy of the record of said order (which relator vouches for, since he filed it as an exhibit herein), recites that "said John Edward Cone asks for and is granted until July 18, 1932, to plead. The court at this time takes up matter as to custody of minor child during the pendency of this matter, and orders John E. Cone that he restore said minor child to Mrs. Bertha Milbourn within twenty-four hours."

The petition or application for the writ further states that the order as to restoration of custody of said infant to Mrs. Milbourn "is unlawful and void and made without any authority or jurisdiction of the said Leslie A. Bruce whatsoever;" that said Judge Bruce had no jurisdiction or authority in said divorce proceeding at the time he made said citation for contempt "the same having been fully tried and heard by the Honorable Judge Dimmitt Hoffman aforesaid;"

The petition for the writ also set up that, (the clerk of the Johnson Circuit Court having failed and neglected to enter the judgment of May 5, 1932), on the 24th day of June, 1932, by order of Judge Hoffman, the clerk of said Johnson County Circuit Court entered said judgment as, and of, the date of May 5, 1932.

It was also alleged that Judge Bruce was divested of any jurisdiction regarding the care and custody of said minor child at the time of the granting and awarding of said change of venue and "that said order was made without any authority or any jurisdiction by the said Judge Leslie A. Bruce touching the care and custody of the said minor child;" that relator is threatened with a further contempt proceeding unless he submits to the unlawful jurisdiction of the said Judge Leslie A. Bruce, and for that reason he has no adequate remedy at law.

The petition further alleged that on June 20, 1932, and long after Judge Hoffman rendered his decision denying plaintiff a divorce and denying defendant any relief on his cross-bill, relator filed a petition for divorce in the Saline County Circuit Court against Floy Anne Cone, and summons was issued for her, directed to the sheriff of Johnson County, Missouri, and lawfully served upon her on June 21, 1932, and said case is now pending in the said Circuit Court of Saline County, and is based on misconduct of said Floy Anne Cone, entitling relator to a divorce, committed after the adjudication by Judge Hoffman as aforesaid, and it is prayed the care and custody, of said minor child, who is now in the care and custody of relator; that the proceeding before Judge Bruce wherein it is sought to have relator adjudged guilty of contempt did not, and would not, bestow on Judge Bruce any jurisdiction to award the care and custody of said child to said Bertha Milbourn and said order to restore said child to her custody is an unlawful interference with, and encroachment upon, the authority and jurisdiction of the Circuit Court of Saline County.

The application or petition for the writ was filed June 25, 1932.

The respondent's return was filed on September 23, 1932, and after admitting that he was Judge as charged in the petition and that from and after November 19, 1930, the divorce action above mentioned was pending in said Johnson County Circuit Court, said return set up that in the exercise of respondent's jurisdiction as judge of said court, he made an order, after a full hearing, directing that the custody of the infant child, John Allen Cone, be given to Mrs. Bertha Milbourn, mother of the plaintiff therein, who was found by respondent to be a fit person to have such custody, and that it was for the welfare of said child that he should be in her custody, which said order provided that the defendant in said divorce case (relator herein) should have the right to visit and see said child at any and all reasonable times, and which order continued and remained in force during the further pendency of said action.

Said return further admitted that upon the filing of an affidavit by relator herein, in said divorce cause, charging "bias and prejudice of respondent herein," the cause was transferred to Judge Hoffman of the Thirtieth Judicial Circuit, "for the trial of the issues in said cause, said trial to be in the Circuit Court of Johnson County, Missouri, with Judge Hoffman presiding;" that the trial of the issues in the divorce case was heard April 28, 1932, and was taken under advisement by Judge Hoffman.

The return, however, denied that Judge Hoffman on the 5th day of May, 1932, rendered judgment in said cause, but states that on April 29, 1932, respondent in the exercise of his power and authority as judge of the Circuit Court of Johnson County, adjourned said court from its then February term, to court in course, the next term of which convened on June 13, 1932, and that thereafter and during said term, to-wit, on June 29, 1932, Judge Hoffman appeared in person in the Circuit Court of Johnson County and rendered his judgment in said divorce action, dismissing both petition and cross-bill. (Nothing was said in said judgment as to the care and custody of said child.)

That prior to said June 29, 1932, and during the pendency of said cause, and while the aforementioned order concerning said child, made by respondent in the exercise of said jurisdiction as judge of said court, was in force, to-wit, on June 18, 1932, "in direct and...