State ex rel. Stevenson v. Hughes

• Decision Date: 01 February 1909
• Citation: 115 S.W. 1069,135 Mo.App. 131
• Parties: THE STATE OF MISSOURI ex rel. M. M. STEVENSON et al., Relators, Respondents, v. JOHN B. HUGHES, Justice of the Peace, etc., Appellant
• Court: Kansas Court of Appeals

115 S.W. 1069

135 Mo.App. 131

THE STATE OF MISSOURI ex rel. M. M. STEVENSON et al., Relators, Respondents, v. JOHN B. HUGHES, Justice of the Peace, etc., Appellant

Court of Appeals of Missouri, Kansas City

February 1, 1909

Appeal from Pettis Circuit Court.--Hon. Louis Hoffman, Judge.

REVERSED.

Judgment reversed.

W. M Illgenfritz and Vieregg & Grover for appellees.

(1) The judgment of the circuit court should be affirmed for the reason that there have been no errors assigned in appellant's brief, the appellant thereby failing to comply with rule seventeen of this court. Rule seventeen of the Kansas City Court of Appeals; Corrigan v. Kansas City, 93 Mo.App. 173; Isaac v. Lumber Co., 47 Mo.App. 30; Clark v. Hill, 69 Mo.App. 541; Bauer v. School District, 78 Mo.App. 442. (2) Garnishment proceedings is a civil cause and in garnishment proceedings therefore, either party is entitled to a change of venue upon making the proper application therefor. For this further reason the judgment of the circuit court should be affirmed. Drake on Attachments, sec. 452; Meints v. Mill Company, 89 Ill. 48; 2 Shinn on Attachments, sec. 466; Moore v. Stainton, 22 Ala. 831; R. S. 1899, secs 3972, 3973; Washington v. Superior Court, 82 P. 875, 2 L. R. A. (N. S.) 568; Martin v. Railway, 50 Mo.App. 428; Giette v. McGannon, 74 Mo.App. 209; Weil v. Taylor, 38 Mo. 545; Ritter v. Insurance Co., 28 Mo.App. 140; Wilson v. Railway, 108 Mo. 588. (3) Change of venue in garnishment proceedings is not prematurely asked for before the answer to interrogatories are filed. R. S. 1899, secs. 3972, 3973, 3936, 3937; Weber v. Cummings, 39 Mo.App. 518; Ritter v. Insurance Co., 28 Mo.App. 140; Lloyd v. Clayton, 34 Mo.App. 563; State v. McCracken, 60 Mo.App. 650; Wickersham v. Jarvis, 2 Mo.App. 279; 20 Cyc., secs. 1039, 1054, 1074. (4) Mandamus issues from a circuit court to compel a justice of the peace to grant a change of venue when he refuses to do so, the proper application having been made. Lloyd v. Clayton, 34 Mo.App. 563; State v. McCracken, 60 Mo.App. 650.

E. C. White and Anamosa & England for respondent.

(1) Mandamus will not lie to compel a justice of the peace to grant a change of venue to a garnishee, before the garnishee has filed his answer in the court whence the execution issued, and the answer of the garnishee has been denied by the judgment creditor, for the reason, that is has long been held that a garnishee must make its answer in the court whence the execution issued, it having exclusive control over its process. Chicago Herald Co. v. Bryan, 195 Mo. 596; Spengler v. Kaufman, 43 Mo.App. 10; Tinsley v. Savage, 50 Mo. 142; Miller v. Bartlett, 89 Mo. 134; Gilbert v. Renner, 95 Mo. 151. (2) Relators having failed to file their answers in the court from whence the execution issued, no issues were before the court for determination, and until issues were joined between the garnishees and the judgment creditor, as prescribed by statute, the court had no authority under the law to grant the garnishees a change of venue. R. S. 1899, sec. 3451; R. S. 1899, sec. 3467; Dodge v. Knapp, 112 Mo.App. 513. (3) The general provision of the statutes concerning the granting of a change of venue, does not apply to a garnishment proceeding, until the answer of the garnishee has been filed with the court whence the execution issued, etc. Chicago Herald v. Bryan, 195 Mo. 590.

OPINION

BROADDUS, P. J.

This is a proceeding by mandamus instituted in the circuit court to compel the defendant, a justice of the peace, to grant a change of venue.

The case was tried on an agreed statement of the facts as follows:

"It is agreed that the respondent, John B. Hughes, is a justice of the peace within and for Cedar township, Pettis county Missouri; that on the 12th day of December, 1905, there was rendered a judgment in said justice court in which E. C. White was plaintiff and W. Mack Pope was defendant for $ 79.93; that there was issued by the justice on said judgment an execution and delivered into the hands of John J. Jeckels, constable of Cedar township; that said constable on said execution summoned the relators, M. M. Stevenson and the Stevenson Packing Company, garnishees, and attached in their hands all moneys, goods, and effects belonging to the defendant, W. Mack Pope, which garnishment was served on the 3rd day of January, 1908, and that the relators were summoned and notified to answer interrogatories on said garnishment proceedings before said justice of the peace on the 15th day of January, 1908; that thereafter, on the 14th day of January, 1908, the relators filed a written application for a change of venue, which it is admitted the attached application was duly served and other-wise in regular and due form of law; that the respondent, the justice of the peace, refused and declined to grant said change of venue upon the ground it was prematurely filed and that the justice of the peace had no power to grant a change of venue until after the relators had answered the interrogatories of the plaintiff, E. C....