State ex rel. Nickerson v. Rose, 38543.

Citation175 S.W.2d 768
Decision Date06 December 1943
Docket NumberNo. 38543.,38543.
PartiesSTATE OF MISSOURI, at the Relation of FLOY G. NICKERSON, J.S. LANE, JR., and EVERETT V. LINEBERRY, Relators, v. VIRGIL CASEY ROSE, Judge of the 3rd Judicial Circuit.
CourtUnited States State Supreme Court of Missouri
175 S.W.2d 768
STATE OF MISSOURI, at the Relation of FLOY G. NICKERSON, J.S. LANE, JR., and EVERETT V. LINEBERRY, Relators,
v.
VIRGIL CASEY ROSE, Judge of the 3rd Judicial Circuit.
No. 38543.
Supreme Court of Missouri.
Division One, December 6, 1943.

[175 S.W.2d 769]

Prohibition.

PROVISIONAL RULE MADE ABSOLUTE.

H.K. West for relators.

(1) Prohibition is the proper remedy. Mo. Const. Art. VI, Sec. 3; State ex rel. Dunlap v. Higbee, 43 S.W. (2d) l.c. 826, 328 Mo. 1066; State ex rel. v. Waltner, 169 S.W. (2d) 697; State ex rel. v. Eby, 170 Mo. 497. 2) The respondent could not act as judge in the condemnation suit, his pretended selection was void. R.S. 1939, sec. 2105; State ex rel. v. Mid State Serum Co., 272 S.W. l.c. 101; Bank v. Graham, 147 Mo. 250; Lacy v. Barrett, 75 Mo. 469; Autenreith v. Schaff, 196 S.W. 1129, 271 Mo. 248; Smith v. Haworth, 53 Mo. 88, 25 S.W. (2d) 499; Ex parte Fish, 184 S.W. 479; State ex rel. v. Bacon, 107 Mo. 627; R.S. 1939, sec. 2024. (3) A condemnation suit is a strictly statutory proceeding and the statute must be strictly followed. School Dist. v. Dorton, 125 Mo. 439; State ex rel. v. Smith, 48 S.W. (2d) 891; 29 C.J.S. 806. (4) The proceeding has no venue. Session Acts 1887, p. 141; R.S. 1939, sec. 916. (5) The motion to dismiss confesses the allegations of the petition. State ex rel. v. Bradley, 193 Mo. 33; State ex rel. v. Rassieur, 184 S.W. 116. (6) There must be a bona fide attempt to agree with the landowner before condemnation will lie. R.S. 1939, sec. 1504. (7) Where there is no method provided for the condemnor to pay the owner prohibition will lie. State ex rel. v. Wiethaup, 231 Mo. 449. (8) The summons was void because it was served after the return date. 50 C.J., pp. 457, 481.

VAN OSDOL, C.


Original proceeding in prohibition to prohibit the respondent, Honorable Virgil Casey Rose, Judge of the Third Judicial

175 S.W.2d 770

Circuit of Missouri, from proceeding further in the hearing of a condemnation case wherein the State of Missouri, at the relation of the State Highway Commission of Missouri, seeks to condemn certain parcels of land in Linn County for the construction of a supplementary state highway.

The condemnation proceeding was instituted on March 4, 1943, by an application by petition to Honorable G. Derk Green, the duly elected, qualified and acting Judge of the Twelfth Judicial Circuit of Missouri, which circuit consists of the counties of Chariton, Linn and Sullivan. The petition was found to be sufficient by Judge Green, who ordered it filed by the circuit clerk of Linn County and further directed the clerk to issue proper summons. On March 5, 1943, the clerk issued a summons directing the sheriff of Linn County "to summons, on or before the 15th day of March 1943" certain of defendants in the condemnation proceedings including relators herein, to "appear before the Honorable G. Derk Green, Judge of the Circuit Court of Linn County, Missouri, in vacation, at the Court House in the City of Brookfield, County of Linn, Missouri, on the 30th day of March, 1943, at the hour of One — M. to answer the condemnation petition of the State of Missouri at the relation of the State Highway Commission of Missouri, or if said parties so summoned do not desire to appear and answer said petition will be taken as confessed and an order made appointing commissioners as prayed for in said petition." The return of the sheriff shows service on resident defendants March 17 and 20, 1943. On March 30, 1943, the disqualification of the regular judge was suggested, and a record entry of that day is as follows, "Now, on this 30th day of March, 1943, it appears that G. Derk Green, Judge of this court, is related to parties hereto and is disqualified from sitting on the trial or determination of the issues here involved." And afterwards, "to-wit, on April 2, 1943, that being the Twelfth day of the regular February Term, 1943, of the Circuit Court of Linn County, Missouri, begun and held at Brookfield, the following appears of record, to-wit:

"In Re: Special Judge.

"Now, on this 2nd day of April, 1943, by order of the Court, the Clerk prepares and distributes ballots for the election of a Special Judge to hear the matter, State of Missouri ex rel. State Highway Commission of Missouri, vs. Roy Stone et al., Judge G. Derk Green, having previously, at a Vacation hearing of this matter, disqualified himself because of relationship to a certain defendant herein.

"It is found that Judge Virgil Casey Rose, Judge of the Third Judicial Circuit of Missouri, is elected, five attorneys of the Linn County Bar being present.

"(Judge Green now vacates the bench)

"In Re: Oath of Special Judge.

"Now, on this 2nd day of April, 1943, comes Judge Virgil Casey Rose, Judge of the Third Judicial Circuit of Missouri, and files his oath, duly sworn and signed, to act as Judge in the matter, State ex rel. State Highway Commission of Missouri vs. Roy Stone et al., and now assumes the bench."

On the same day, April 2d, a plea styled...

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