State ex rel. Fowler v. Calvird
| Decision Date | 04 May 1936 |
| Docket Number | No. 18551.,18551. |
| Citation | 93 S.W.2d 1106 |
| Parties | STATE OF MISSOURI AT THE RELATION OF CHARLES FOWLER ET AL., RELATORS, v. HON. CHARLES A. CALVIRD, JUDGE, RESPONDENT. |
| Court | Missouri Court of Appeals |
Original proceeding in prohibition by the State of Missouri on the relation of Charles Fowler and others against the Honorable Charles A. Calvird, Jr., Judge of the Circuit Court of Henry County, Missouri.
PERMANENT WRIT OF PROHIBITION ISSUED.
Silver & Raines for relators.
W.E. Owen, Floyd L. Sperry, Haysler A. Poague and James A. Parks for respondent.
This is an original proceeding in this court by which relators seek our writ of prohibition permanently prohibiting the respondent, The Honorable Chas. A. Calvird, Jr., Judge of the Circuit Court of Henry County, from the enforcement of a judgment for debt and costs in the sum of $1154.50 entered against them in said court by him as judge thereof on November 7, 1935, purporting to be in a certain cause which had, at one time prior thereto, pended in said court, wherein relators were plaintiffs and Earl E. Swift et al., defendants.
The relators' petition in this cause was filed on November 29, 1935. On December 9, 1935, our preliminary writ was issued on such petition, requiring the respondent to appear on January 6, 1936, and show cause why our permanent writ should not issue, prohibiting him permanently from exercising jurisdiction in such cause to enforce such judgment and from taking any other or further steps or proceedings in said cause.
From the petition, the following facts appear well pleaded: That the respondent, The Honorable CHAS. A. CALVIRD, JR., is and was at all times mentioned in such petition a judge of the Circuit Court of Henry County, Missouri; that there had been pending in said court before respondent as judge thereof a certain cause in which the relators herein were plaintiffs and Earl E. Swift et al. were defendants; that, at the September, 1935, term of said court, these relators (the plaintiffs in said cause) filed a motion therein to quash the jury panel, which motion was by the court at said September term and on September 13, 1935, overruled; that thereafter, at said September term, these relators (plaintiffs in said cause) filed an application therein for a change of venue of the same on account of the bias and prejudice of the respondent judge; that, upon due notice to the defendants in said cause, the application for change of venue was presented to the court and to respondent as judge thereof and by him sustained on September 30, 1935, during said September term, and change of venue in said cause at said date and term was made to the Circuit Court of Johnson County, Missouri, and entry of record on said date was accordingly made in such behalf and the clerk of the court by entry of record on said date and at said term was ordered to make a full, true, and complete transcript of the record and proceedings had in said cause in such behalf and to certify the same under the seal of the court to the clerk of the Circuit Court of Johnson County; that thereafter, on October 2, 1935, the transcript of the record and the files in said cause were certified by the clerk of the Circuit Court of Henry County to the clerk of the Circuit Court of Johnson County, where said cause was duly docketed in the latter court and is still pending therein; that, afterward, on November 7, 1935, and during the September term, 1935, of the Circuit Court of Henry County, the defendants in said cause filed with the clerk of the Circuit Court of Henry County, Missouri, a motion entitled in said cause moving the Henry County Circuit Court to tax the costs incurred upon the motion to quash the jury panel against the plaintiffs in said cause (the relators herein); that thereupon, on November 7, 1935, the respondent as judge of the Circuit Court of Henry County undertook to exercise jurisdiction in said cause after it had been transferred from the Circuit Court of Henry County by change of venue, and undertook to sustain said motion to tax costs, and by order of record taxed the costs against the plaintiffs in said cause who filed the motion to quash the jury panel, and caused to be entered upon the judgment record of the court an entry showing that judgment had been rendered against the plaintiffs therein (the relators herein) in the sum of $1154.50 for debts and costs; that said cause in which said entries were made was not for debt but was a cause wherein a certain will was sought to be contested; that thereafter, on November 25, 1935, during said September term, 1935, these relators ex parte filed a motion in said Circuit Court of Henry County, Missouri, seeking to have the action of the court in sustaining said motion and taxing costs against the plaintiffs and in entering judgment against the plaintiffs in the sum of $1154.50 set aside for lack of jurisdiction in the court and in respondent as judge thereof to entertain such motion and to render such judgment after the change of venue in said cause had been awarded; and that, on said date, the relators' motion to set aside said judgment against them was by respondent overruled.
Relators herein by their petition challenge the judgment so entered by the Circuit Court of Henry County and the respondent as judge thereof, in said cause which had been pending in such court, wherein they were plaintiffs and Earl E. Swift et al., defendants, as having been made without any jurisdiction in the court or the judge thereof so to do and after said court and the respondent as judge thereof had been divested of jurisdiction in said cause by the order transferring the cause on change of venue to the Circuit Court of Johnson County and seek our permanent writ of prohibition to prohibit respondent from enforcing said judgment by execution or otherwise.
Relators further allege in their petition that the action of the respondent in ordering the entry in the judgment docket of the judgment complained of for $1154.50 against them is arbitrary and oppressive and is without authority of law and that, unless prohibited by this court from so doing, the respondent will attempt to enforce said judgment against relators.
In response to our preliminary writ, the respondent appeared and, for return thereto, demurred to relators' petition, basing his demurrer on the following grounds:
The cause therefore stands upon the sufficiency of relators' petition — whether, upon the allegations of their petition, they are entitled to have our preliminary writ in prohibition. The facts well pleaded in the petition by relators are, upon the demurrer, to be taken as true; and, by such facts, we are bound.
The question for our determination upon the facts pleaded in the petition is one respecting the jurisdiction of the Circuit Court of Henry County and of the respondent as judge thereof. From the facts alleged in the petition, it appears that the judgment rendered against the relators in the Circuit Court of Henry County in the case wherein they were plaintiff and Earl E. Swift et al. were defendants, by the respondent as judge of said court, the enforcement of which is sought to be prohibited, was rendered and entry thereof made upon the records of the court at a time when said cause was pending in the Circuit Court of Johnson County, having been transferred thereto on change of venue from the Circuit Court of Henry County. The respondent by his demurrer admits such facts to be true. If true, the respondent had no jurisdiction to enter the judgment. The petition alleges that said cause, while pending in the Circuit Court of Henry County at the September term, 1935, thereof, was, on due application and proceedings therefor, transferred by change of venue to the Circuit Court of Johnson County by order made on September 30, 1935, during said term, and that the judgment, the enforcement of which is sought to be prohibited, was rendered by the respondent as judge of the Circuit Court of Henry County and entry thereof made upon the records of the Circuit Court of Henry County on November 7, 1935, some seven weeks after said cause had been transferred to the Circuit Court of Johnson County, while said cause was pending in the Circuit Court of Johnson County. Clearly, at such time, the Circuit Court of Henry County and the respondent as judge thereof...
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