State ex rel. Snip v. Thatch, 39696.

• Decision Date: 10 June 1946
• Docket Number: No. 39696.,39696.
• Citation: 195 S.W.2d 106
• Parties: STATE OF MISSOURI, at the Relation of CORNELIUS SNIP, Relator, v. HON. DEWEY P. THATCH, Judge of the Circuit Court of Henry County, Missouri.
• Court: Missouri Supreme Court

195 S.W.2d 106

STATE OF MISSOURI, at the Relation of CORNELIUS SNIP, Relator, v. HON. DEWEY P. THATCH, Judge of the Circuit Court of Henry County, Missouri.

No. 39696.

Supreme Court of Missouri.

Division Two, June 10, 1946.

Prohibition.

PRELIMINARY RULE MADE ABSOLUTE.

W.W. Sunderwirth and Lynn M. Ewing for relator.

(1) This court will take judicial notice of the record and journals of the General Assembly, and will take judicial knowledge of the fact that the present General Assembly convened on January 3, 1945, and had not adjourned, nor recessed for more than 20 days, prior to August 28, 1945. State ex rel. Donnell v. Searcy, 347 Mo. 1052, 152 S.W. (2d) 8; State ex rel. Karbe v. Bader, 336 Mo. 259, 78 S.W. (2d) 835; Utz v. Dormann, 328 Mo. 358, 39 S.W. (2d) 1053. (2) Under the provisions of Civil Code of Missouri, Section 96, Laws of Missouri, 1943, page 383, the Circuit Court of Henry County had no authority or power to overrule the application for continuance. Sec. 96, Civil Code of Missouri, Laws 1943, p. 383; Sec. 1089, R.S. 1939; State v. Myers, 352 Mo. 735, 179 S.W. (2d) 72; State v. Clark, 214 Mo. App. 536, 262 S.W. 413. (3) If the respondent had no authority to overrule petitioner's application for continuance, then prohibition is a proper remedy. State ex rel. v. Waltner, 350 Mo. 1021, 169 S.W. (2d) 697; State ex rel. Sawyer v. Kelly, 330 Mo. 143, 48 S.W. (2d) 864; State ex rel. Larew v. Sale, 188 Mo. 493, 87 S.W. 967.

Harry B. Jenkins and Fred A. Bredehoft for respondent.

The court should properly construe Section 96 of the 1943 Session Acts and Rule 4 of the Canon of Ethics.

TIPTON, J.

Original prohibition to prohibit respondent, judge of the twenty-ninth judicial circuit, from proceeding with the trial of a case entitled Thomas Davis, plaintiff, v. Cornelius Snip and Lamar Trust Company, defendants. Relator contends that respondent exceeded his jurisdiction in denying his application for continuance which was based on the fact that Senator W.W. Sunderwirth, relator's attorney, was a member of the general assembly.

The case of Thomas H. Davis, plaintiff, v. Cornelius Snip was filed in the circuit court of Barton County on January 11, 1944. It is an action for personal injuries claimed to have been received by plaintiff in an automobile accident which occurred in April, 1943. Later an amended petition was filed making the Lamar Trust Company an additional party. Plaintiff was granted a change of venue from Barton County to the circuit court of Bates County. In December, 1944, relator was granted a change of venue from Bates County to the circuit court of Henry County. At this time relator employed Senator Sunderwirth of El Dorado Springs, Missouri, as an additional attorney in the case.

On the first day of the January term, 1945, of the circuit court of Henry County, relator filed in that court an application for continuance based upon the fact that Senator Sunderwirth was a member of the general assembly and in attendance upon its sessions. This application was sustained by the court and the cause continued. This case was set for trial on July 9, 1945, and by order of respondent the case was reset for August 28, 1945. On August 17, 1945, relator filed an application for continuance, stating that the general assembly of this state was in session and that his attorney, Senator Sunderwirth, was a member of that body. With this he filed a supporting affidavit.

An August 20, 1945, respondent overruled the application and found that the general assembly had been in vacation from June 29, 1945, to September 4, 1945; that Senator Sunderwirth's attendance was not necessary to a fair and proper trial or other proceedings in the court; and that the employment of Senator Sunderwirth was done only for the purpose of seeking to obtain a delay.

Relator's application for continuance conformed to Section 96, Civil Code of Missouri, Laws of Missouri, 1943, page 383, which reads:

"In all civil cases or in criminal cases pending in any court of this state at any time when the general assembly is in session, it shall be a sufficient cause for a continuance if it shall appear to the court, by affidavit, that any party applying for such continuance, or any attorney, solicitor or counsel of such party is a member of either house of the general assembly, and in actual attendance on the session of the same, and that the attendance of such party, attorney, solicitor or counsel is necessary to a fair and proper trial or other proceeding in such suit; and on the filing of such affidavit the court shall continue such suit and any and all motions or other proceedings therein, of every kind and...