State ex rel. Osborne v. Southern, 21650

• Decision Date: 14 June 1951
• Docket Number: No. 21650,21650
• Parties: STATE ex rel. OSBORNE v. SOUTHERN.
• Court: Missouri Court of Appeals

Page 94

241 S.W.2d 94

STATE ex rel. OSBORNE v. SOUTHERN.

No. 21650.

Kansas City Court of Appeals, Missouri.

June 14, 1951.

William O. Sawyers, St. Joseph, for relator.

PER CURIAM.

This is an original proceeding in prohibition. Relator contends that respondent exceeded his jurisdiction in denying his (relator's) application for a continuance.

Briefly, the facts are: Respondent is Judge of Division No. 5 of the Circuit Court of Jackson County, Missouri, at Kansas City. On March 26, 1951, the case of Luella Hicks, plaintiff, v. Kansas City Public Service Company, came on for trial in said Division No. 5 before a jury. Relator was one of the attorneys for plaintiff in said cause. One of the jurors selected to try the issues in that cause was Verna E. McDonald. On April 6, 1951, a citation for criminal contempt, returnable on the 13th day of April, 1951, at 9:30 a.m., was issued by respondent Judge against relator. In this citation it was set forth in detail that during the course of the trial of the Hicks case relator did attempt to influence and corrupt the juror McDonald.

On April 13, 1951, relator filed his application for a continuance in which it was alleged that relator had employed as his attorney William O. Sawyers; that his said attorney was a member of the Senate of the State of Missouri; that his attorney was actually attending the present 66th Session of the General Assembly; that said William O. Sawyers was relator's only counsel and his attendance at the trial of the cause was necessary to a fair and proper trial thereof. Attached to the application was the affidavit of Senator Sawyers.

Respondent overruled relator's application for a continuance and this proceeding followed.

Relator's application for a continuance complied with Section 510.120 R.S.Mo.1949. In discussing this section our Supreme Court held: 'When an application for continuance is presented to a court it can only determine if the application complies with the statute. If so then it is the court's duty to sustain it * * *.' State ex rel. Snip v. Thatch, Judge, 355 Mo. 75, 195 S.W.2d 106, 107.

The assertion that the proceeding before respondent is neither a civil or criminal case within the purview of Section 510.120, supra, is clearly erroneous. Our Supreme Court in Ex parte Shull, 221 Mo. 623, 121 S.W. 10, 11, said: 'Contempt of court is 'a specific criminal offense,' * * *.'

As the law now stands it was mandatory upon respondent to have continued the trial of the...