State ex rel. Dilliner v. Cummins

• Decision Date: 18 March 1936
• Docket Number: 34691
• Parties: State of Missouri at the relation of W. W. Dilliner, Relator, v. Thomas A. Cummins, Judge of the Fourth Judicial Circuit and Ex-Officio Judge of the Circuit Court of Atchison County
• Court: Missouri Supreme Court

92 S.W.2d 605

338 Mo. 609

State of Missouri at the relation of W. W. Dilliner, Relator, v. Thomas A. Cummins, Judge of the Fourth Judicial Circuit and Ex-Officio Judge of the Circuit Court of Atchison County

No. 34691

Supreme Court of Missouri

March 18, 1936

Alternative writ amended and made peremptory.

Clayton W. Allen, W. R. Littell, DuBois, Miller & Beavers and Livengood & Weightman for relator.

(1) The awarding of a change of venue in an election contest is an act in excess of the jurisdiction of the circuit court. Chap 61, Art. VIII, R. S. 1929. (2) The code pertaining to election contests is a code unto itself and all rights, both substantive and adjective, must be found in its provisions. State ex rel. v. Spencer, 166 Mo. 286; State ex rel. v. Hough, 193 Mo. 615. (3) Circuit courts possess only common-law prerogatives and such statutory jurisdiction as is expressly given them. (a) Change of venue did not exist at common law. It is purely statutory. State ex rel. v Wofford, 119 Mo. 410; Art. XII, Chap. 5, R. S. 1929; Cole v. Cole, 89 Mo.App. 228; Robinson v Robinson, 268 Mo. 703; Graves v. Davidson, 68 S.W.2d 711. (b) Election contest statutes makes no provision for change of venue. Art. VIII, Chap. 61, R. S. 1929. (4) Assume, for the sake of this point, his act was legal, which we deny, in awarding the change, it was properly remanded to him by an order of a court of competent jurisdiction in an election contest at the instance and request of one of the parties to the litigation and consented to by the other party. Sec. 906, R. S. 1929; Taylor v. Railroad Co., 68 Mo. 399; Bank of Kennett v. Cotton Exchange Bank, 72 S.W.2d 944; 67 C. J., p. 224, sec. 369, p. 218, sec. 366, p. 625, sec. 117; State v. Spokane County Super. Ct., 40 Wash. 443, 82 P. 875, 111 Am. St. Rep. 915, 2 L. R. A. (N. S.) 568, 5 Ann. Cas. 775.

A. F. Harvey, Wright & Ford and Virgil Rathbun for respondent.

(1) By statute in Missouri, the common law of English and all statutes and acts of Parliament prior to the fourth year of the reign of James I of a general nature, are made the law of this State. Change of venue is of common-law origin and existed prior to that time. Sec. 645, R. S. 1929; 4 Enc. Pleading & Practice 375, sec. II. (a) An election contest is a statutory proceeding, not necessarily governed by the code. The change of venue statute was not a part of the code in the beginning, but was only incorporated into the code in the Revision of 1879, as a matter of convenience. State ex rel. v. Knight, 26 S.W.2d 1011. (b) The fact that the code of civil procedure does not apply to an election contest does not show that it is not a civil suit or proceeding entitling the party to a change of venue. State ex rel. v. Riley, 203 Mo. 175; State ex rel. v. Sheppard, 245 Mo. 50; State ex rel. v. Trimble, 272 S.W. 66; In re McFarland, 12 S.W.2d 523; Manson v. Coleman, 86 Mo.App. 18; St. Louis, Oak Hill & C. Ry. Co. v. Fowler, 113 Mo. 458; State ex rel. v. Smith, 176 Mo. 97. (2) A change of venue may be awarded in any civil suit to any court of record. Sec. 907, R. S. 1929; State v. Riley, 101 S.W. 568; Heath v. Tucker, 117 S.W. 128; 6 Am. & Eng. Enc. of Law (2 Ed.) 96; 67 C. J., p. 136, sec. 225; State ex rel. Bixman v. Denton, 107 S.W. 446; State v. Yager, 157 S.W. 560, 250 Mo. 388; Heath's Assignment, 136 Mo.App. 347. An election contest is a civil suit. Weakley v. Wolf, 47 N.E. 468; Nealson v. Snead, 83 S.W. 786; 40 Cyc. 120, sec. 5. (3) It is settled law that where the question of jurisdiction is determined from controverted facts in the case rather than the law, and the question is determined against the plaintiff, appeal or writ of error and not mandamus, is the remedy. State ex rel. v. McKee, 150 Mo. 244; State ex rel. v. Brown, 48 S.W.2d 859.

OPINION

Frank, J.

Original proceeding in mandamus to compel respondent, judge of the Circuit Court of Atchison County, to proceed with an election contest pending in said court, in accordance with the statutes in such cases made and provided.

Upon the filing of relator's petition for the writ, our alternative writ was issued, to which respondent made return, and the cause was submitted on briefs filed by both parties.

The facts are, in substance, as follows:

Relator and one John J. Wright were opposing candidates for the office of clerk of the county court of Atchison County, at the election held on November 6, 1934. John J. Wright was declared duly elected. Relator instituted a proceeding in the Circuit Court of Atchison County to contest said election. Contestee filed answer in said cause. Thereafter on February 28, 1935, relator filed application for change of venue (so called) from the court. Said application was sustained and the venue of said cause was awarded to the Circuit Court of Andrew County. After said cause reached the Circuit Court of Andrew County, contestee appeared in said court and moved that the cause be remanded back to the Circuit Court of Atchison County, on the ground that the statute does not authorize or provide for a change of venue in an election contest. This motion was sustained and the cause was remanded back to the Circuit Court of Atchison County, and the same was there received, filed and entered upon the docket of said court. Thereafter, relator appeared in the Circuit Court of Atchison County and verbally stated in open court that he waived all objections theretofore made to respondent, judge, and withdrew the charges of bias and prejudice against said judge and requested him to try said cause. Respondent, judge, refused to make any order in the case. Thereupon relator verbally requested the clerk of said cause to hold an election for the purpose of electing a special judge to try said cause, and requested respondent, judge, to direct the clerk to hold such election. All of the requests and statements so made by relator were taken down by the court reporter on his record. Respondent, judge, stated that having granted a change of venue in said cause, and having awarded the venue to the Circuit Court of Andrew County, he was without jurisdiction to proceed further in said cause or make any orders whatever therein.

Respondent, judge, has filed a motion to dismiss this proceeding on the ground that relator did not abstract the alternative writ. In mandamus proceedings the alternative writ is the first or basic pleading, and the return to the writ takes the place of an answer. [State ex rel. Consolidated School District v. Jones, 320 Mo. 353, 8 S.W.2d 66, 67.] Our rules requiring abstracts of record apply to original proceedings in this court, as well as to cases coming to this court by appeal. It is settled law that an abstract of record should contain the pleadings in the cause. Werminghaus v. Eberle (Mo.), 81 S.W.2d 607, and since the alternative writ in this case is the first pleading it should have been abstracted. The purpose of our rule requiring the abstract of record to contain the pleadings is for the convenience of the court in determining what the issues are. But where, as in this case, the respondent's pleading which is properly abstracted, furnishes us all the facts which an abstract of the alternative writ would have given us, it would be sacrificing substance for form and would defeat rather than promote justice, to dismiss the cause for failure to abstract the alternative writ. Respondent's return to the alternative writ begins by alleging the institution of the election contest in the Circuit Court of Atchison County of which respondent is the regular judge, then continues by alleging every step that was taken in the case from its institution to the time mandamus was applied for in this court. The facts heretofore stated were all taken from respondent's return. For the reasons stated respondent's motion to dismiss the proceedings is overruled. In so holding, we are neither waiving nor disregarding the rule requiring pleadings to be abstracted. What we do hold is that where, as in this case, the abstract of respondent's pleading serves the same purpose that an abstract of relator's pleading would have served, the proceeding should not be dismissed.

Relator first contends that the statutory scheme providing for contest of elections is a code unto itself, and since such code does not provide for a change of venue, the court has no jurisdiction to grant a change of venue in such cases. Respondent contends otherwise.

In the view we take of this case, it is not necessary to determine this contention. The right to a change of venue is not a constitutional right, but is a mere statutory privilege which the parties may waive either before or after the change has been granted. Courts and text writers have so held. In the case of State v. Taylor, 132 Mo. 282, 33 S.W. 1145, the defendant was indicted in the Circuit Court of Dallas County for stealing nine hogs of the value of $ 36. On defendant's application the venue of said cause was changed to the Circuit Court of Hickory County because of the alleged prejudice of the inhabitants of Dallas County against him, and the cause was duly certified to Hickory County. Apparently changing his mind as to the prejudice of the inhabitants of Dallas County, defendant appeared in the Circuit Court of Hickory County, and agreeed with the prosecuting attorney that the cause be transferred back to Dallas County, and it was so ordered. He was tried and convicted in Dallas County. On appeal he contended the Circuit Court of Dallas County acquired no jurisdiction to try the case. In affirming the judgment, this court, among other things, said:

"The right to a change of venue being a privilege accorded to the defendant alone, and not to the state, no valid reason appears to us why he may not stipulate for such a change or waive...