State ex rel. Hazel v. Watkins
| Decision Date | 26 June 1923 |
| Citation | 253 S.W. 781,212 Mo.App. 501 |
| Parties | STATE ex rel. HAZEL, et al., Respondent, v. GEORGE W. WATKINS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Pemiscot County.--Hon. Sterling H McCarty, Judge.
AFFIRMED.
Judgment affirmed.
Sam J Corbett, M. O. Morris, Jas. R. Brewer, B. A. McKay and C. G Shepard for appellants.
(1) Before respondents were entitled to a change of venue it was absolutely necessary that they comply with the provision of the statute under which a change of venue is granted. Section 4982, R. S. 1909, provides that a change of venue may be granted where the proper affidavit is made and a part of the affidavit must be "as the defendant verily believes." These all important words were not contained in the affidavit for change of venue filed before appellant, George W. Watkins. Huthsing v. Maus, 36 Mo. 107-108; State ex rel. v. Denton, 128 Mo.App. 312; State ex rel. v. O'Hallaron, 144 Mo.App. 574. (2) Section 4983, R. S. 1909, provides that if affidavit for change of venue be filed the justice must immediately transmit the original papers and transcript to the next nearest justice in the township if there be one, unless the party asking for change of venue shall in his affidavit state that the other justice in the township is disqualified, in which case he shall then send the case to a justice in some other township in the county. The statute provides for a change of venue from the justice before whom the proceeding is instituted and the next nearest justice and no other. In the instant case respondents sought to include in their affidavit three justices which is one more than the law allows. The statutes pertaining to change of venue are strictly construed and the party seeking the change must bring himself within the provisions of the statute or else the change will not be granted. State ex rel. Wafford, 119 Mo. 408; Eudaley v. Railroad, 186 Mo. 403; Railroad v. Powell, 104 Mo.App. 367; State v. Hoffman, 75 Mo.App. 385; State ex rel. O'Hallaron, 144 Mo.App. 570; Sanders v. Dickson, 114 Mo.App. 229; State ex rel. v. Denton, 128 Mo.App. 312. (3) Where the application for change of venue disqualifies more justices than the statute authorizes, the justice before whom the affidavit for change of venue is filed may treat that part of the affidavit as surplusage and award the change of venue as provided by law. State v. Dabbs, 118 Mo.App. 663; Sanders v. Dickson, 114 Mo.App. 229. (4) Had respondents been entitled to change of venue as prayed and had appellant erred in refusing to grant the change, then it was the duty of respondents before instituting their action in mandamus, to file a motion before the justice asking the justice to vacate his order awarding the change of venue to G. G. Bowen and award the change to W. W. Corbett, the justice before whom they desired to be tried. (5) The party applying for a mandamus must show not only that he has no other specific remedy, but that he has a specific right. State ex rel. Bartley v. Governor, 39 Mo. 401. (6) Mandamus will not issue where the complaining party has another adequate remedy at law. In the instant case, if the relators' petition is taken as true, then they had an adequate remedy either by appearing before Justice Bowen by motion to dismiss and if that motion was denied, they had an adequate remedy by habeas corpus. State v. Buhler, 90 Mo. 560; State v. Ross, 245 Mo. 36. (7) The party asking the writ of mandamus is the party holding the affirmative, and therefore has the burden in calling upon the court to issue its writ of mandamus he must show himself the possessor of a clear legal right to the remedy he seeks, and consequently if his evidence or his pleadings leave any essential point in doubt such doubt will be resolved against him and such remedy denied. Where the right is doubtful, mandatory action of the court cannot be successfully invoked. State v. Williams, 99 Mo. 291; State ex rel. Watkins v. Macon County Court, 68 Mo. 50; State ex rel. Bahannon v. Howard County, 39 Mo. 377.
Everett Reeves, N. C. Hawkins and J. E. Duncan for relators.
(1) We assert that under this statute a defendant may disqualify all or any less number of justices according to the number which any township may happen to have. Generally speaking, townships have but two justices of the peace, and this fact was probably the reason for the language found in the statute; but to construe the statute to mean that you could not disqualify more than two justices in townships containing more than two would do violence to the scope and purpose of the statute. Secs. 4983 & 7482, R. S. 1909; Pattison's Mo. Form Book (2 Ed.), sec. 1106; Guy v. Railway Co., 197 Mo. 174; State ex rel. v. O'Hallaron, 144 Mo.App. 570; State ex rel. v. O'Hallaron, 164 Mo.App. 626; State v. Dabbs, 118 Mo.App. 663. (2) Mandamus is the proper remedy in a case like this. When an affidavit for change of venue in due form and time has been filed with a justice of the peace there is nothing for the justice then to do but to grant the change in conformity with the affidavit. He has no discretion in the matter. The act granting the change is not a judicial one, but a ministerial duty. If the justice refuses to grant the change of venue in conformity with the affidavit and application for change of venue, mandamus is the proper remedy State ex rel. Lloyd v. Clayton, 34 Mo.App. 563; State ex rel. Schonhorst v. Cline, 85 Mo.App. 633; State v. Brumley, 53 Mo.App. 126; State ex rel. v. McCracken, 60 Mo.App. 650. (3) Where a justice of the peace enters a judgment in his docket which does not conform to the verdict of the jury in his court, the circuit court had authority by mandamus to require him to set aside his judgment and to enter a judgment in conformity with the verdict of the jury. State ex rel. v. Bidwell, 136 Mo.App. 503. (4) A writ of mandamus may be issued by the Supreme Court to the circuit court to require the circuit court to proceed to try a case on its merits although the term of the circuit court has expired before the mandamus writ was issued. This is true even though the circuit court had already undertaken to decide and determine the case and the term of court had already elapsed; yet, the Supreme Court has the right and power by mandamus to direct the circuit court to re-instate the case and try it. State ex rel. v. Homer, 249 Mo. 58. (5) The circuit court can compel the county court by mandamus to vacate an order selling swamp lands. Dunklin County v. District County Court, 23 Mo. 449. (6) A superior court can direct an inferior court by mandamus to set aside the judgment which is entered without any authority of law. Franciscus v. Martin, 90 Mo. 196. (7) An inferior court can be required by mandamus to enter a judgment upon a confession of judgment. Vernon v. Boggs, 1 Mo. 117, 274. (8) The Supreme Court can direct the circuit court to reinstate a case in which it had quashed the proceedings. Castello v. Circuit Court, 28 Mo. 259. (9) The Supreme Court can by mandamus compel the circuit court to set aside an order granting a change of venue and to proceed and determine the cause. Ex parte Cox, 10 Mo. 743. (10) If the circuit court sets aside the verdict of the jury in a case twice for the same reason the Supreme Court will by mandamus direct the circuit court to enter a judgment in accordance with the second verdict. State ex rel. Adams, 76 Mo. 605. (11) The Supreme Court will direct the trial court by mandamus to reinstate a case and act upon a motion for judgment even though the trial court had already ordered the case to be dropped from the docket before the issuance of the writ of mandamus. State ex rel. v. Court of Common Pleas, 73 Mo. 560. (12) An election board can be required by mandamus to cast up and count the returns of an election even though the board had finally adjourned. State ex rel. v. Berg, 76 Mo. 136. (13) The Supreme Court will by mandamus compel the Court of Appeals to certify and transfer a case to the Supreme Court. State ex rel. v. Phillips, 96 Mo. 570; Tobacco Co. v. Rombauer, 113 Mo. 435. (14) The Supreme Court will by mandamus require the Court of Appeals to reinstate a cause which had already been dismissed by the Court of Appeals. State ex rel. v. Phillipps, 97 Mo. 440. (15) A superior court never hesitates to require an inferior court by mandamus to reinstate and determine a cause which it had dismissed without any authority so to do. State ex rel. v. Smith, 105 Mo. 6. (16) The Supreme Court will by mandamus direct the trial court to proceed and try a case which the latter court had refused to try without legal excuse. State ex rel. v. Field, 107 Mo. 445. (17) The Supreme Court will by mandamus direct the trial court to determine a motion for new trial which the trial court has refused to pass upon. State ex rel. v. Stratton, 110 Mo. 426.
--We transferred this cause to the Supreme Court on the ground, as we believed, that we had no jurisdiction. [State ex rel. Hazel et al. v. Watkins, 227 S.W. 1059.] The Supreme Court retransferred, holding that jurisdiction is here. [State ex rel. Hazel et al. v. Watkins, 245 S.W. 1059.]
The cause is in mandamus to compel a justice of the peace to grant a change of venue in a criminal case. The alternative writ was granted by the judge of the circuit court in vacation. Respondent below, appellant here, made return. To this return relators demurred. The demurrer was sustained and apellant refusing to further plead, peremptory writ issued, and respondent below appealed.
April 6, 1920, an affidavit was filed before appellant justice of the peace for a State warrant, in which affidavit relators were charged with a felony....
To continue reading
Request your trial