State ex rel. Dunlap v. Higbee

• Decision Date: 17 November 1931
• Parties: The State ex rel. Vina Dunlap and Maggie Dunlap v. Paul D. Higbee, Judge of First Judicial Circuit
• Court: Missouri Supreme Court

43 S.W.2d 825

328 Mo. 1066

The State ex rel. Vina Dunlap and Maggie Dunlap v. Paul D. Higbee, Judge of First Judicial Circuit

Supreme Court of Missouri

November 17, 1931

Provisional rule made absolute.

Randall Wilson and Garland Wilson for relators.

(1) Respondent herein has no jurisdiction under the order made on July 1, 1929, by the Hon. A. G. Knight, Judge of the Circuit Court of Mercer County, to try the case of Fleming v. Dunlap. (a) Because said order was made in a particular case and does not cover the case of Fleming v. Dunlap, nor refer to it. (b) Because Hon. A. G. Knight, Judge of the Circuit Court of Mercer County, was without authority to make an order at its April term for the holding of a part of the September term of said court. Sec. 2440, R. S. 1919; Viertel v Viertel, 212 Mo. 562. (c) Because any authority that could have been given respondent under an order for the holding of a portion of the September term of the Circuit Court of Mercer County, terminated with the lapsing of said term. Viertel v. Viertel, 212 Mo. 562; State v Bobbitt, 215 Mo. 30. (2) Respondent herein has no jurisdiction under the order made on November 1, 1929, by the Hon. A. G. Knight, Judge of the Circuit Court of Mercer County, to try the case of Fleming v. Dunlap. (a) Because the Hon. A. G. Knight, Judge of the Circuit Court of Mercer County, was without any authority to overrule the application for change of venue filed by defendants, and call in respondent to try said cause. Sec. 1358, R. S. 1919; Gale v. Michie, 47 Mo. 326; State ex rel. v Woodson, 86 Mo.App. 253. (3) The Hon. A. G. Knight, Judge of the Circuit Court of Mercer County, having been of counsel for plaintiff in the case of Fleming v. Dunlap, it was his duty, especially after his attention had been called to the fact by the application for change of venue filed by defendant, to grant a change of venue in said cause, in place of calling in respondent to try same. Sec. 1358, R. S. 1919; Gale v. Michie, 47 Mo. 326; State ex rel. v. Smith, 176 Mo. 97; State ex rel. v. Gray, 100 Mo.App. 102; State v. Shea, 95 Mo. 91; State ex rel. v. Woodson, 86 Mo.App. 253; State ex rel. Sprague v. Flournoy, 160 Mo. 324; Penfield v. Vaughn, 169 Mo. 371; State ex rel. v. Dabbs, 118 Mo.App. 663.

John Powell, E. M. Harber and Woodruff & Woodruff for respondent.

(1) This proceeding is a proper proceeding to test the jurisdiction of respondent. State ex rel. v. Fort, 178 Mo. 518; State ex rel. v. Bacon, 107 Mo. 627; State ex rel. v. O'Bryan, 102 Mo. 254; State ex rel. v. Denton, 128 Mo.App. 304; State ex rel. v. Dabbs, 118 Mo.App. 663; State ex rel. v. Flournoy, 160 Mo. 324; State ex rel. v. Woodson, 86 Mo.App. 253; State ex rel. v. Stanton, 235 Mo. 222. (2) It is not mandatory on the regular judge, who is for any reason disqualified, to grant a change of venue to another circuit. Under the statutes relating to change of venue, he may do so, or under the Constitution another judge may be called in to try the case. Allen v. Snyder, 82 Mo. 256; Harper v. Jacobs, 51 Mo. 300; State v. Able, 65 Mo. 367; Barnes v. McMullen, 78 Mo. 260; Lewellen v. Haynie, 25 S.W.2d 499; State v. Catalino, 316 Mo. 1152; State v. Cottengim, 12 S.W.2d 53; State v. Stewart, 271 S.W. 875, 216 Mo.App. 664; Dauwalter & Son v. Ry. Co., 115 Mo.App. 577; Todd v. Hutchinson, 129 Mo.App. 633. (3) The authority of respondent to preside in this cause has not ceased. State v. Noland, 111 Mo. 473; State ex rel. v. Wear, 129 Mo. 619; Edmonds v. Schraff, 279 Mo. 78, 213 S.W. 823; State ex rel. v. Williams, 136 Mo.App. 330; Bower v. Daniel, 198 Mo. 289; Sherwood v. Steel, 293 S.W. 799; State v. Hayes, 81 Mo. 574; Ward v. Bell, 157 Mo.App. 524; State v. Alsup, 140 Mo.App. 194; State v. Hayes, 88 Mo. 344. (4) There can be no change of venue from respondent. Koehler v. Criddle, 30 Mo.App. 34; State ex rel. v. Woodson, 86 Mo.App. 260; St. L. C. G. & Ft. S. Ry. Co. v. Holladay, 131 Mo. 440; Eudaley v. Railroad, 186 Mo. 399; State v. Greenwade, 72 Mo. 298; Blanchard v. Haseltine, 79 Mo.App. 248; Speer v. Burlingame, 61 Mo.App. 75; State v. Sanderson, 106 Mo. 188.

OPINION

Gantt, J.

Original proceeding in prohibition. Cause submitted on the pleadings. Relators challenge the authority of Hon. Paul D. Higbee, Judge of the First Judicial Circuit, to preside at the trial of Fleming v. Dunlap et al., in the Circuit Court of Mercer County in the Third Judicial Circuit.

Hon. A. G. Knight, Judge of the Circuit Court of Mercer County, had been of counsel or otherwise disqualified in a number of cases pending in that court at the April term, 1929. At said term and on July 1, 1929, he made an order disqualifying himself in Mudgett v. Alley, Administrator, and called Judge Higbee to hold a part of the September term, 1929, of the Circuit Court, Mercer County, commencing on the first day of said term, and preside as judge on the trial of said cases. In response, Judge Higbee appeared in said court on said day. At that time and before he proceeded to try the cases, relators, defendants in the case of Fleming v. Dunlap et al. (one of the cases in which Judge Knight was disqualified), presented to the court, Judge Knight presiding, an application for a change of venue, therein alleging that Judge Knight had been of counsel in said case and praying for a transfer to another circuit. Judge Knight refused to consider the application and called Higbee to the bench, who proceeded to call the cases for trial, among them the case of Fleming v. Dunlap et al. When the Fleming case was called, plaintiff did not answer and it was passed. After attention to other matters, Judge Higbee, without again calling the Fleming case or in any way undertaking to proceed with a trial of said case, vacated the bench in favor of Judge Knight, who proceeded with business of the court.

Thereafter during the September term, 1929, and on November 1, Judge Knight entered another order in said case in which he reviewed the order of July 1; then entered of record Judge Higbee's doubt of his authority to try the Fleming case because it was not mentioned in the order of July 1; then entered of record his (Judge Knight's) disqualification to try said case; then entered of record a call to Judge Higbee to try said case; then overruled relators' application for a change of venue and set the case for trial November 28, 1929. Thereafter during the September term, 1929, and on November 28, Judge Higbee appeared in the Circuit Court of Mercer County as judge of said court and entered of record in the Fleming case the following:

"This cause having been set for trial for Thursday, November 28, 1929, and Hon. A. G. Knight, Judge of the Circuit Court of Mercer County, having disqualified himself to sit as judge in the case and having called the undersigned in to try said cause, and it being impossible for the undersigned to try said cause on said date, it is hereby ordered that this cause be continued until the December term, 1929, of this court and this cause is ordered docketed for trial on Monday, December 16, 1929.

"Paul D. Higbee,

"Judge of the First Judicial Circuit and Special Judge in said cause."

His further efforts in the cause were prohibited by our rule in prohibition.

The record in this proceeding does not present a question of jurisdiction. It is a question of error. [In re Drainage District v. Richardson, 227 Mo. 252, l. c. 261, 126 S.W. 1021.] However, the writ having been issued, we will determine the question in this proceeding.

I. The parties did not consent that Judge Knight preside, or agree on a special judge, or request the election of a special judge. In this situation relators contend that Judge Knight having been of counsel could only transfer the case to another circuit. They cite as sustaining the contention Section 908, Revised Statutes 1929, which follows:

"If the judge is interested or related to either party, or shall have been of counsel in the cause, the court or judge shall award such change of venue without any application from either party, unless all the parties in the cause consent that such judge may sit on the trial thereof, or a special judge for the trial thereof be agreed upon by the parties, or elected in the manner provided by law."

It is also provided in Section 911, Revised Statutes 1929, that on reasonable notice, a change of venue shall be awarded to a county where the causes complained of do not exist; provided, that where the application is founded on the interest, prejudice or other objections to the judge or judges, a change of venue shall not be awarded to another county if the parties shall thereupon agree on a special judge, or, if both parties request the election of a special judge to be held under Sections 1943, 1945 and 1946, Revised Statutes 1929.

Thus it appears that a disqualified judge in a civil case is not authorized by the change-of-venue statute to call another judge to try the case. He must, under said statute, transfer the case to another circuit, unless the parties consent that he may preside, or agree on a special judge, or request the election of a special judge.

But respondent contends that Section 29, Article VI, Constitution, authorizes a disqualified judge to call another judge to try a case in which he is disqualified. In other words, that a regular judge being disqualified may, under the change of venue statute, transfer the case to another circuit, or, under Section 29, Article VI, Constitution, call another judge to try the case.

The answer to those contentions must be found in the interpretation to be given to said section of the Constitution, which follows:

"If there be a vacancy in the office of judge of any circuit, or if the judge be sick, absent, or from any cause unable to hold any term...