State ex rel. Creamer v. Blair, 44234

• Decision Date: 12 July 1954
• Docket Number: No. 44234,44234
• Parties: STATE ex rel. CREAMER et al. v. BLAIR, Judge, et al.
• Court: Missouri Supreme Court

Page 1

270 S.W.2d 1

364 Mo. 927

STATE ex rel. CREAMER et al. v. BLAIR, Judge, et al.

No. 44234.

Supreme Court of Missouri, En Banc.

July 12, 1954.

T. A. Shockley, Waynesville, Claude T. Wood, Richland, for relators.

H. M. Atwell, Eldon, C. D. Snodgrass, Tuscumbia, for respondents.

BENNICK, Special Judge.

This is an original proceeding in prohibition which was instituted upon the petition of Ben and Allie Creamer, the defendants in an action brought and now pending in the Circuit Court of Maries County.

The case in the circuit court is one to establish a private road over the land of the Creamers under the procedure outlined by Section 228.340 RSMo 1949, V.A.M.S.

An application for a change of venue was filed by the Creamers upon the ground of the prejudice of Honorable E. W. Allison, the regular judge of the Circuit Court of Maries County. It is to be noted that the application was based solely upon the ground of the alleged prejudice of the judge, and was not in anywise directed against the inhabitants of the county.

The application was made and acted upon under the provisions of Sections 508.090, 508.140, RSMo 1949, V.A.M.S. Judge Allison sustained the application, and at the suggestion of counsel for the plaintiff in the action, sent the case to the Circuit Court of Cole County of which Honorable Sam C. Blair is the regular judge. From the fact that the change of venue was awarded to another county when the application had been founded on the prejudice of the judge, it obviously follows that the parties had neither agreed upon a special judge nor requested the election of a special judge.

After the record had been transmitted to the Circuit Court of Cole County, the plaintiff in the action filed a motion in such court to remand the case to the Circuit Court of Maries County. Judge Blair sustained such motion, and remanded the case to the Circuit Court of Maries County upon the ground that Judge Allison had been without authority to transmit it to the Circuit Court of Cole County.

The basis of Judge Blair's ruling was that the transfer of a case to another county by a disqualified judge is no longer authorized under the change of venue statutes because in contravention of the Constitution of 1945, Article V, Secs. 6 and 15, V.A.M.S., and that any such disqualification should be met by the temporary transfer of a judge by the Supreme Court to the court where the case is pending, or by the request of the regular judge to another judge to sit in the trial of the case in his stead.

Upon the remand of the case to the Circuit Court of Maries County, Judge Allison, inasmuch as he had been charged with prejudice against the Creamers, requested Honorable Joseph T. Tate, the judge of the 32nd Judicial Circuit, to sit as judge in the trial of the case. Judge Tate acceded to Judge Allison's request; and when he assumed jurisdiction and set the case down for trial, the Creamers, as relators, petitioned this court to issue its writ prohibiting both Judge Allison and Judge Tate from exercising any jurisdiction over the case; prohibiting Judge Blair from enforcing his order remanding the case to the Circuit Court of Maries County; and directing Judge Blair to resume jurisdiction over the case and to proceed with the trial of the same to a final disposition.

In due course this court's preliminary rule in prohibition was ordered to issue; and the matter has been submitted for determination upon respondent judges' motion to dismiss upon the ground that relators' petition fails to state a claim upon which relief could be granted.

It is to be borne in mind that while relators challenge the legality of Judge Allison's action in calling in Judge Tate to preside over the trial of the case, they do so only upon the assumption that having previously granted the change of venue to the Circuit Court of Cole County, Judge Allison had thereby lost all further power over the case, including the power to call in a special judge as expressly authorized by Article V, Section 15, of the new Constitution. In other words, their position is that the change of venue had been properly allowed under Sections 508.090 and 508.140 of the statutes; and that having been allowed, Judge Blair became vested with jurisdiction of which he could neither divest himself nor reinvest Judge Allison by his order remanding the case to the Circuit Court of Maries County. The controversy therefore resolves itself into the question with which Judge Blair was concerned--of whether, in a case where the regular judge becomes disqualified, Sections 6 and 15 of Article V of the new Constitution have supplanted and repealed all existing statutes in so far as they relate to the granting of a change of venue upon the ground of disqualification of the judge, or whether, on the contrary, such constitutional provisions merely provide additional and supplementary methods for meeting the situation by calling in another judge or by the transfer of judicial personnel.

Section 6 of Article V provides that the Supreme Court may make temporary transfers of judicial personnel from one court to another as the administration of justice requires, and may establish rules with respect thereto.

Section 15 of Article V provides, among other things, that any circuit judge may sit in any other circuit court at the request of the judge thereof.

Several of the more recent decisions of this court have touched on different aspects of the question involved in this proceeding, and in one of them--Pogue v. Swink, Mo.Sup., 261 S.W.2d 40--the question has to all intents and purposes been effectively answered.

In Pogue v. Swink the precise question was whether Sections 6 and 15 of Article V of the new Constitution had impliedly repealed Section 508.100 RSMo 1949, V.A.M.S., which provides that if the judge is interested or otherwise disqualified for any one or more of certain stated reasons, he may award a change of venue without any application from either party, unless all the parties consent that he may sit, or a special judge be agreed upon or elected in the manner provided by law.

Pointing out in the first instance that the obvious purpose of Sections 6 and 15 of Article V is to save litigants the annoyance, delay, and expense of attending a trial in another circuit when the sole complaint is against the judge, and then emphasizing that Sections 6 and 15 constitute provisions complete and self-enforcing in and of themselves for calling in and transferring a judge whenever the administration of justice so requires, this court held that there was no reason why prior inconsistent statutory provisions should continue in effect when superseded by the more comprehensive and salutary provisions which had been written into the new Constitution upon the same subject matter. The court therefore concluded that Judge Swink had been in error in undertaking to award a change of venue under Section 508.100 because of his disqualification on account of his personal interest in the action, and that a proper procedure would have been to disqualify himself and request this court to transfer a judge to try the case.

Every reason assigned for holding that Section 508.100 has been superseded by Sections 6 and 15 of Article V of the new Constitution applies with equal force and vigor to the conclusion that Sections 508.090 and 508.140 have likewise been nullified in so far as they provide for the granting of a change of venue upon the ground of the disqualification of the judge.

There is no merit to relators' contention that the difference in the factual situation in the two cases makes the decision in Pogue v. Swink inapplicable to the case at bar. There would obviously be the same annoyance, delay, and expense to litigants who were compelled to attend trial in another circuit irrespective of whether the judge had been disqualified either with or without an application by either of the parties. In either situation the purpose of the constitutional provisions would be equally violated were a change of venue to be allowed where the sole complaint was against the judge. Such constitutional provisions are no less comprehensive and controlling in the one instance than in the other, and must be held to have abrogated all existing change of venue statutes to the extent that such statutes make provision for the allowance of a change of venue for the sole purpose of effecting a change of judge.

In additional to Pogue v. Swink, supra, other cases pointing to this result are State v. Scott, 359 Mo. 631, 223 S.W.2d 453; Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323; and Adair County v. Urban, Mo.Sup., 268 S.W.2d 801.

When the affidavit of prejudice was filed against Judge Allison, he should at once have either requested the judge of another circuit to sit in the case, or have requested this court to transfer a judge for that purpose. For reasons already indicated he had no authority to grant a change of venue upon a ground pertaining purely to his own qualifications; and when the record was lodged in the Circuit Court of Cole County, Judge Blair acted correctly in remanding the case to the Circuit Court of Maries County from which it had come. State ex rel. Kansas City Public Service Co. v. Waltner, 350 Mo. 1021, 169 S.W.2d 697. The purported change of venue having actually been a nullity, Judge Allison thereupon conformed to proper procedure in requesting Judge Tate to preside at the trial.

It follows that the preliminary rule in prohibition should be discharged, and it is so ordered.

HYDE, J., concurs.

HOLLINGSWORTH, DALTON and LEEDY, JJ., and CONKLING, C. J., concur and concur in opinion of HYDE, J.

CAVE, Special Judge, dissents.

HYDE, Judge.

I concur in the opinion of BENNICK, J., herein and the rulings made in the last paragraph thereof. I think that the repeal of Section 29, Art. VI of the Constitution of 1875 and the adoption of Sections 6 and 15 of Art. V of the 1945 Constitution...