State ex rel. Sharp v. Knight
| Decision Date | 07 April 1930 |
| Docket Number | No. 16959.,16959. |
| Citation | 26 S.W.2d 1011 |
| Parties | STATE OF MISSOURI EX REL. HOMER SHARP, RELATOR, v. A.G. KNIGHT, JUDGE, ETC., RESPONDENT. |
| Court | Missouri Court of Appeals |
Stultz & Adams for relator.
J.W. McKnight for respondent.
This is an original proceeding in mandamus in which relator seeks to compel the respondent, Knight, who is Judge of the Circuit Court of Harrison County, to take jurisdiction in a mandamus proceeding alleged to be pending in the circuit court of said county on a change of venue from the circuit court of Gentry county. Relator in the present suit is the relator in the proceedings in the lower court and the board of supervisors of Albany Drainage District of Gentry county is claimed to be the respondent in the court below. The respondent herein entered his appearance and, with this court's consent, waives formal issuance of the alternative writ and demurs to the petition in its stead, and the petition thereby stands in lieu of and as for the alternative writ. [State ex rel. Consolidated School District v. Lee, 303 Mo. 641, 643.]
The facts disclosed by the petition for the writ in the proceeding before us show that on October 24, 1929, relator filed a petition in the circuit court of Gentry county, Missouri, seeking a writ of mandamus against the board of supervisors aforesaid requiring them to audit or have audited the books of the treasurer of the district for each year since 1922, and to call a meeting of landowners in the district for the purpose of electing members of the board of supervisors of said district, and to make a report of said audit to the landowners of said district at said meeting and to publish the statement of said audit within thirty days thereafter, showing the amount of money received each year since 1922, the amount paid out during each year since 1922 and the amount in the treasury at the beginning and at the end of each year since 1922.
On the 9th day of November, 1929, relator filed in the circuit court of Gentry county, Missouri, his application and affidavit for a change of venue in the mandamus proceeding started therein. This application was based upon the allegation that the judge of that court was biased and prejudiced in favor of the board of supervisors of the district, and had been before his election as judge of that court, the attorney for the district and the legal adviser of the board of supervisors and that he had been and was, at the time of the filing of the application, treasurer of the district and secretary of the board of supervisors, and as secretary of said board kept the books of the district which were sought to be audited in that proceeding. The application prayed that the court grant a change of venue to some other judicial circuit.
On November 9, 1929, the court made an order changing the venue in said proceeding to the circuit court of Harrison county, presided over as judge by the respondent herein, and the papers in the cause were sent to and were filed in the office of the clerk of that court. Thereafter, on December 2, 1929, after due notice had been given to the members of the board of supervisors of the district, the court took up the motion of relator filed in the circuit court of Harrison county requesting that court to issue a writ of mandamus requiring them to do the things prayed for in the petition for the writ, and on that day the members of the board of supervisors, "without waiving the question of the jurisdiction of the circuit court of Harrison county, Missouri, over their person, and without waiving issuance of an alternative writ of mandamus," filed their motion in said proceedings, claiming that the circuit court of Harrison county did not have jurisdiction of the proceedings and was without power to issue an alternative writ of mandamus therein; that there was no change of venue known to the law of Missouri "in a mandamus proceeding instituted in the circuit court upon a petition for the issuance of an alternative writ." On the same day the court found the contention of the members of the board of supervisors to be well taken, that is to say, that a change of venue from the circuit court of Gentry county was not maintainable in those proceedings.
Thereafter, on the 24th day of December, 1929, relator filed a motion to set aside the order and the ruling of the court that it had no jurisdiction and requesting the court to take jurisdiction in the proceedings and to issue a writ of mandamus. Upon notice being duly given to the members of the board of supervisors the motion to set aside was taken up by the court and on January 20, 1930, the motion was overruled, the court again holding that the circuit court of Gentry county had no jurisdiction or authority to grant a change of venue in a mandamus proceeding.
On January 27, 1930, relator filed a petition in this court praying for a writ of mandamus against respondent, judge of the circuit court of Harrison county, requiring him to exercise jurisdiction in the proceedings which relator claims is pending in respondent's court and to hear and determine said suit and proceedings.
One of the grounds set forth in respondent's demurrer to the petition herein is that the petition does not state facts sufficient, under the law, to entitle relator to the relief sought therein because the "general statutes pertaining to changes of venue in civil actions are not applicable to proceedings in mandamus," and it is claimed by the respondent in his brief that the action of the Gentry county circuit court in granting the change of venue was coram non judice.
It is insisted by the relator that the provisions of the law in this State relative to changes of venue (see article II of chapter 12, R.S. 1919) are applicable in mandamus proceedings, mandamus being a civil suit within the meaning of section 1357 providing "a change of venue may be awarded in any civil suit," etc. That mandamus is a civil suit is now well established. [State ex rel. v. Lewis, 76 Mo. 370, 380; State ex rel. v. Bourne, 151 Mo. App. 104; 38 C.J., p. 543.] Civil suits in this State are all those that are not criminal. [State ex rel. v. Riley, 203 Mo. 175, 176, 187.]
While it is true that the right to a change of venue is purely statutory and does not exist except in those instances where the statute gives it (Cole v. Cole, 89 Mo. App. 228, 233), the change of venue statute is to be liberally construed in favor of the right to grant it, so far as its applicability to particular classes of civil suits is concerned. [State ex rel. v. Riley, supra, l.c. 187, 188.] In the case of State v. Yager, 250 Mo. 388, it was held that the change of venue statute is applicable to a suit brought by a prosecuting attorney to remove a sheriff from office for misconduct in office and neglect of official duty, the statute making such a proceeding a civil action.
Following the case of State ex rel. v. Riley, supra, this court, in the case of State ex rel. v. Denton, 128 Mo. App. 304, held that certiorari is a civil suit within the meaning of the change of venue statute, and that the right of change of venue existed in certiorari proceedings. It has been squarely decided that change of venue statutes granting the right to such changes in civil suits apply to suits in mandamus. [City of Williamsport v. Commonwealth, 90 Pa. 498, 499; Woodworth v. Nat'l Bank, 144 Mich. 338; McBane v. The People, 50 Ill. 503, 506.] It is quite apparent that mandamus being a civil suit, section 1357, Revised Statutes 1919, providing for a change of venue in "civil suits" applies to mandamus, unless there is something in the statute, either expressly or by inference, confining the application of the change of venue law to civil suits other than mandamus proceedings, which respondent contends is the case. There are some statements in the cases in this State to the effect that the Practice Act of the General Code of Civil Procedure does not apply to mandamus proceedings. [Smith v. St. Francis Co. Court, 19 Mo. 433; State ex rel. v. Burkhardt, 59 Mo. 75, 78; State ex rel. Conran v. Williams, 96 Mo. 1, 18; State ex rel. v. Fraker, 166 Mo. 130, 142; State ex rel. v. Cook, 201 S.W. 361, 363.]
Respondent contends that as the article relating to change of venue appears in our Revised Statutes in the chapter relating to the General Code of Civil Procedure and as article 6 of the General Code provides that that article, which is one relating to amendments to pleadings, shall apply to mandamus (see sec. 1290, R.S. 1919) by necessary implication the other provisions of the General Code do not apply to proceedings in mandamus, but that those proceedings are governed by article 9 of chapter 13, relating to mandamus. On the face of the matter it would appear that respondent's contention is well taken. However, an examination of the history of these statutes shows conclusively to our minds that the provisions of the statute relative to change of venue apply to mandamus proceedings, as well as other civil suits.
Although the change of venue provision in force in Missouri before it became a State appeared under the chapter dealing with the practice of the law (see Vol. I Territorial Laws of Mo., p. 117, sec. 32), the provisions relative to change of venue have never appeared in connection with any other act or statute since the territory of Missouri became a State or shortly thereafter, but had always, up to the revision of 1879, appeared as a separate act or chapter devoted exclusively to the subject of change of venue. [R.S. 1825, p. 786; R.S. 1834-35, p. 614; R.S. 1845, p. 1072; R.S. 1854-55, p. 1558; R.S. 1865, p. 633.] It was not until the revision of 1879 that the provisions of our law relative to change of venue first appeared in the General Code of Civil Procedure (see art. 11, chapter 59, R.S....
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