State ex rel. Poston v. District Court

• Citation: 39 Wyo. 24,269 P. 35
• Decision Date: 17 July 1928
• Docket Number: 1521
• Parties: STATE EX REL. POSTON v. DISTRICT COURT [*]
• Court: United States State Supreme Court of Wyoming

269 P. 35

39 Wyo. 24

STATE EX REL. POSTON v. DISTRICT COURT ^[*]

No. 1521

Supreme Court of Wyoming

July 17, 1928

Original proceedings in Prohibition by the State of Wyoming on the relation of Lon J. Poston, against the District Court of the Eighth Judicial District of Wyoming within and for the County of Natrona, and BRYANT S. CROMER, Judge.

Philip E. Winter, Corthell, McCullough & Corthell, and William E Mullen, for plaintiff.

The statute authorizes change of venue in civil actions, 6419 C S. Civil actions are defined by 5555 C. S. No distinction is made as between jury and non-jury cases, Perkins v. McDowell, 3 Wyo. 203; the principle is recognized in Huhn v. Quinn, 21 Wyo. 51; Murdica v. State, 22 Wyo. 196; while the latter case was a criminal prosecution, the same principle governs. The amendment, by Ch. 64 L. 1927, of Section 6421 C. S., did not change the rule; the amendment was intended to enlarge the right to include probate proceedings; prohibition is a proper remedy upon denial of application for change, State v. Riley, (Mo.) 101 S.W. 567; Walker v. Ellis, (Mo.) 48 S.E. 457; the term "civil action" or "civil suit" includes equity cases triable without a jury, Scanlon v. Deuel, (Ind.) 94 N.E. 561; Binzen v. Same, (Ind.) 94 N.E. 563. The statute is mandatory, Donisthorper v. Lutz, (Ia.) 136 N.W. 233; 40 Cyc. 120-121. Relator is without a plain and adequate remedy in the ordinary course of the law; right of appeal may not be an adequate remedy, Perkins v. McDowell, Huhn v. Quinn, Murdica v. State, supra; State v. Ausherman, 11 Wyo. 410; Keefe v. Court, 16 Wyo. 381; State v. Court, 34 Wyo. 288; State v. Court, (Wash.) 82 P. 877; State v. Court, (Wash.) 166 P. 630. A trial by court without jurisdiction, and an appeal from the judgment would necessitate a new trial, People v. Court, (Colo.) 69 P. 597; State v. Gay, (Wash.) 118 P. 830; People v. Court, (Colo.) 152 P. 149, 164; State v. Fourt, (Mo.) 77 S.W. 741; mere right of appeal does not preclude right to prohibition, People v. Court, 266 P. 572; Con. Ad. Co. v. Court, (Calif.) 207 P. 552; City v. Comm'n., (Okla.) 221 P. 1000; Northcutt v. Court, (Calif.) 226 P. 25; Prohibition is the proper remedy, 115 S.W. 470; 245 S.W. 897; 27 R. C. L. 829; change of venue may be demanded in equity and other non-jury cases, Evans v. Evans, (Ind.) 5 N.E. 24; Owens v. Owens, 3 Ky. 154; Fort v. White, (Ind.) 101 N.E. 27; State v. Court, (Ind.) 138 N.E. 762; In re Griffin, (Ind.) 69 N.E. 192; State v. Shepherd, (Mo.) 149 S.W. 456; an appeal is not always a plain, speedy and adequate remedy, State v. R. R. Co., (Mo.) 149 S.W. 456; State v. Colbert, (La.) 56 So. 273; State v. Monson, (N. D.) 215 N.W. 680; Forest Coal Co. v. Judge, (W. Va.) 46 S.E. 238; People v. Court, (Colo.) 56 P. 1115. The statute will be liberally construed in favor of applicant, Aspoli v. State, 22 Wyo. 210; the statute has been generally applied in suits of a civil nature for more than a half century in this jurisdiction; it seems to be the general rule in other jurisdictions, Nolan v. McDuffie, (Calif.) 58 P. 4; McCarty v. Herrick, (Ida.) 240 P. 192; State v. Court, (Ia.) 179 N.W. 442; State v. DeBaum, (Ind.) 154 N.E. 492; Daniels v. Bruce, (Ind.) 95 N.E. 569; Knickerbocker Co. v. Tolman, 80 Ill. 106; Woodworth v. Bank, 144 Mich. 338; Herbert v. Beckhart, 26 Kans. 746; State v. Yager, (Mo.) 157 S.W. 557; Little v. Co., 214 P. 596; Baldwin v. Marygold, 2 Wis. 419. Cases cited by respondent are affected by peculiar statutory provisions in the states in which reported, many leave the granting of a change to the discretion of the trial court; even where the time prescribed for demanding a jury has passed, the court has power to order any issue of fact tried to a jury, 5724 C. S.; Chosen Friends v. Ottersen, 7 Wyo. 89; Lellman v. Mills, 15 Wyo. 149. The denial of a change of venue was in excess of the court's jurisdiction and the writ of prohibition is clearly applicable, State v. Court, 12 Wyo. 547; Keefe v. Court, supra; State v. Court, 34 Wyo. 288; relator's contention is fortified by decisions from other jurisdictions; People v. Court, (Colo.) 69 P. 597; State v. Court, (Ia.) 179 N.W. 442; State v. Slate, (Mo.) 214 S.W. 84; State v. Court, (Mont.) 240 P. 288; State v. Monson, (N. D.) 215 N.W. 680; State v. Court, (Wash.) 166 P. 630.

E. E. Enterline and Durham & Bacheller, for defendants.

Applicant was not entitled to change of venue, neither side having demanded a jury, 6419 C. S.; our legislative history on the subject of changes of venue indicates that the right does not exist except in jury cases, 3401, 3409 R. S. 1877, 6421 C. S. 1920. Chapter 64 L. 1927 amended 6421 C. S. There is but one decision in Wyoming which might lend color to relator's contention, that of Perkins v. McDowell, 3 Wyo. 203. The following cases are contrary to relator's contention: 111 P. 942; 12 Tenn. 578; 36 Ark. 305; 16 S.W. 161; 48 S.W. 457; 41 Md. 362; 143 P. 841; Vol. 2 Bancroft, 1452; 35 P. 578.

RINER, Justice. BLUME, C. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This is an original proceeding commenced in this court by the plaintiff for an alternative writ of prohibition to be directed to the defendants, the District Court of the Eighth Judicial District of Wyoming, within and for the County of Natrona, and Bryant S. Cromer, Judge of said court, commanding it and him to desist and refrain from any further proceedings in a certain civil action, mentioned in the petition for the writ as pending in said District Court, wherein Evelyn M. Delfelder, as Executrix of the last will and testament of Jacob A. Delfelder, deceased, is plaintiff, and the relator herein, Lon J. Poston, is defendant. Upon presentation of the petition, an alternative writ was issued by this court. Due service of the process was had on April 19th, 1928, and on May 9th following defendants interposed a general demurrer to plaintiff's petition, and the issues thus raised have been argued and are now for decision.

Summarized, the petition presents the following facts: On December 29, 1927, the civil action already mentioned was commenced, it being one to recover the possession of certain described real estate situate in Natrona County, Wyoming, and for damages for withholding such possession from the plaintiff in that action. In proper time, and on March 14, 1928, an answer was filed in the cause consisting substantially of a general denial, coupled with four other defenses, one of them being the statute of limitations. Thereafter and on March 21, 1928, the answer was replied to by a pleading, which in effect presented a general denial of the allegations set forth in the four special defenses alleged therein, and also pleaded new matter directed at them. On April 3, 1928, and within twenty days after the cause thus came at issue, the defendant in the action, Poston, filed therein, through his attorneys, a motion for a change of venue of the action from Natrona County to another county other than Converse, Hot Springs and Niobrara, upon the grounds set out in his supporting affidavit, also filed, which, omitting caption and verification, reads:

"LON J. POSTON, of lawful age, being duly sworn according to law, deposes and says: That he is the defendant named in the above entitled cause; that the plaintiff has an undue influence over the citizens of the County of Natrona, State of Wyoming, and that on account of local prejudice existing in the County of Natrona, State of Wyoming, against the cause of defendant herein, he believes that he cannot obtain a fair and impartial trial of said cause in the County of Natrona, State of Wyoming; defendant further says that similar conditions exist and the same objections apply to each of the Counties of Converse and Hot Springs and Niobrara, respectively; and for the reasons herein stated defendant asks that the venue of said cause be changed from Natrona County, Wyoming, to the most convenient county to which the same and foregoing objections do not apply."

It appears by the petition, through copy of the court order made a part thereof, that neither party, within the time required by law (Sec. 5783, W. C. S. 1920), made application for a jury trial and deposited the requisite fee therefor. And consequently, though the action was one in which a jury was properly demandable, a jury trial was waived, and the cause became triable by the court or by the court and a jury (Sec. 5724, W. C. S. 1920).

Thereafter on April 7, 1928, the case came on to be heard upon this application and affidavit for a change of venue, and, in the terms of the order entered disposing of the matter:

"It appearing to the court that neither party to this action has demanded a trial by jury and the court being now fully advised in the premises, it is hereby considered and ordered by the court as follows: That the said motion of the defendant for change of venue be, and the same is hereby, denied."

It also appears from the petition that on April 3rd following, but as of the date of March 31, 1928, the court, upon application of the attorneys for the plaintiff-executrix, by due order made, set down the cause for trial on April 23, 1928. A motion filed by relator to vacate the order setting the case for trial, alleging the court to be "without jurisdiction to hear, try or determine the issues in said cause," was, on April 16, 1928, denied. Exceptions were saved by and allowed relator to the orders denying change of venue and denying the vacation of the order setting the case for trial.

The sole question to be determined is the effect to be given Section 6419, W. C. S. 1920, under the situation above outlined. From the phraseology of the order denying the change of venue, it would appear that the District Court of Natrona County took...