State ex rel. Union Electric L. & P. Co. v. Bruce.

• Decision Date: 20 December 1933
• Docket Number: No. 33105.,33105.
• Citation: 66 S.W.2d 847
• Parties: STATE OF MISSOURI at the Relation of UNION ELECTRIC LIGHT AND POWER COMPANY, a Corporation, Relator, v. LESLIE A. BRUCE, Judge of the Circuit Court of Johnson County.
• Court: Missouri Supreme Court

66 S.W.2d 847

STATE OF MISSOURI at the Relation of UNION ELECTRIC LIGHT AND POWER COMPANY, a Corporation, Relator, v. LESLIE A. BRUCE, Judge of the Circuit Court of Johnson County.

No. 33105.

Supreme Court of Missouri.

Division Two, December 20, 1933.

Mandamus.

PEREMPTORY WRIT DENIED.

Baker, Botts, Andrews & Wharton and Edgar Shook for relator.

(1) Mandamus is the proper remedy to require an inferior court to exercise its jurisdiction and to proceed in a case properly arriving there on change of venue even though the main controversy is not cognizable by the court granting mandamus. State ex rel. v. Tracy, 94 Mo. 217, 6 S.W. 709; State ex rel. v. Offutt, 9 S.W. (2d) 595; State ex rel. v. O'Bryan, 102 Mo. 254, 14 S.W. 933; State ex rel. v. Grimm, 220 Mo. 483, 119 S.W. 626; State of Washington ex rel. Martin v. Superior Court of King County, Washington, 4 A.L.R. 572, 101 Wash. 81, 172 Pac. 257. (2) Section 10777, Revised Statutes 1929, being an exclusive statutory provision for change of venue in proceedings relating to drainage districts organized in circuit courts and decisions respecting changes of venue in proceedings under Chapter 64, Article 1, are applicable to and controlling upon changes of venue in such cases only and in no way govern the right to change of venue in eminent domain proceedings under Chapter 7, Article 2, Revised Statutes 1929. Sec. 10777, R.S. 1929; State ex rel. Sharp v. Knight, 224 Mo. App. 761, 26 S.W. (2d) 1016. (3) A condemnation case is a civil suit within the meaning of Section 907, Revised Statutes 1929. St. Louis, O.H. & C. Ry. Co. v. Fowler, 113 Mo. 458, 20 S.W. 1069. (4) The right to change of venue exists in a condemnation case in Missouri when, after the appropriation of rights required in the property is accomplished, proper and timely application is made therefor before the trial to a jury of the inquiry of damages has been begun. Art. XII, Sec. 4, Mo. Const.; Sec. 907, R.S. 1929; St. L., O.H. & C. Ry. Co. v. Fowler, 113 Mo. 458, 20 S.W. 1069; K.C. Suburban Belt Ry. Co. v. K.C., St. L. & C. Ry. Co., 118 Mo. 599, 24 S.W. 478; State v. Yeager, 250 Mo. 388, 157 S.W. 557; Ex parte Haley, 12 S.W. 667, 99 Mo. 150; Fields Estate, 6 S.W. (2d) 68, 222 Mo. App. 1051; Yeoman v. Younger, 83 Mo. 424; State ex rel. Duncan v. Price, 38 Mo. 382; Manson v. Coleman, 86 Mo. App. 18; Giett v. McGannon Merc. Co., 74 Mo. App. 209; State ex rel. v. Hollenbeck, 68 Mo. App. 366; Clements v. Greenwell, 40 Mo. App. 589; The State to Use v. Rayburn, 22 Mo. App. 303.

Poague, Silver & Poague, C.A. Calvird, Jr., and Ross E. Feaster for respondent.

(1) If this condemnation action is one proceeding from the filing of the petition up to the adjudication of damages, then the application for change of venue was too late; and its granting could not vest the Johnson County Circuit Court with jurisdiction. State ex rel. Reeder v. Foard, 268 Mo. 300, 188 S.W. 71; Little River Drainage Dist. v. Tomlinson, 245 Mo. 1, 149 S.W. 454; Ex parte Cox, 10 Mo. 742. This change of venue cannot be allowed after report of a referee. Woodrow v. Younger, 61 Mo. 395. Or on scire facias to receive judgment. Sutton v. Cole, 155 Mo. 206. (2) This condemnation is one continuous proceeding. (a) It is commenced by petition. R.S. 1929, secs. 1340, 1341. Followed by appointment of commissioners, assessment of damages. Payment of damages assessed. Appropriation of the land. Sec. 1342. Notice of report of commissioners. Exceptions to report. Judgment of court granting or refusing a new appraisement. Sec. 1344. If the court allows a new appraisement, same may be by jury trial in court in which proceedings are had. Sec. 1344. (b) The action of the court allowing or denying a new appraisement is a final judgment from which appeal lies. St. Louis v. Glennon, 229 S.W. 205. (3) If a new appraisement is granted, such new appraisement is an order after final judgment. All rights of the parties are determined prior to the jury hearing, save and except only the amount of damages. Sec. 1344. (4) A change of venue after final judgment, to transfer hearing on subsequent proceedings, is too late. Robinson v. Robinson, 268 Mo. 703, 186 S.W. 1034. (5) Jurisdiction of the subject-matter cannot be conferred by entry of appearance or consent, in an action in rem. Where the venue is fixed by law in the county where the land lies, another venue cannot be established by appearance or agreement. Bray v. Marshall, 66 Mo. 122; Big Tarkio Drainage Dist. v. Voltmer, 256 Mo. 152, 165 S.W. 338; St. Louis v. Glasgow, 250 Mo. 291; In re Ford, 157 Mo. App. 158.

WESTHUES, C.

Relator filed its petition in this court praying that a writ of mandamus be issued to compel the Hon. Leslie A. Bruce, Judge of the Seventeenth Judicial Circuit, to proceed to the trial of a certain issue growing out of a condemnation suit. The condemnation suit was filed, by relator, in the Circuit Court of Henry County against C.W. and May French, husband and wife. The condemnation proceedings progressed in the regular way in the Circuit Court of Henry County and a judgment condemning the land was entered. Relator, plaintiff in the condemnation suit, filed written exceptions to the report of the commissioners assessing damages and asked for a jury trial upon that issue. Relator also filed an application for a change of venue. The application was granted and the cause transferred to Johnson County in the Seventeenth Judicial Circuit. Defendants in the condemnation suit filed a motion in the Johnson County Circuit Court asking that the case be remanded to the Circuit Court of Henry County upon the ground that the Circuit Court of Henry County was without authority to grant a change of venue. This motion was sustained and the relator filed the present proceedings in this court.

Relator contends that the defendants in the condemnation suit waived their right to object to a change of venue, if any they had, because no objection was made or exceptions saved to the order granting the application; also that defendants submitted themselves to the jurisdiction of the Circuit Court of Johnson County by filing a motion in that court previous to the motion filed to remand the case. We will forego a discussion of the question of a waiver and dispose of the case upon the question presented by respondent, that the Circuit Court of Henry County was without power to grant a change of venue in a condemnation suit after the case had progressed to the point of filing exceptions to the report of commissioners assessing damages.

[1] The cases of State ex rel. Reeder v. Foard, 268 Mo. 300, 188 S.W. 71, and In re Little River Drainage Dist. v. Tomlinson. 245 Mo. 1, 149 S.W. 454, are cited in support of this contention. Those cases were proceedings to establish drainage districts, under what is now Article 1, Chapter 64, Revised Statutes 1929 (Mo. Stat. Ann. p. 3462). The Drainage District Act has a change of venue law all its own. Section 10777 of the act provides:

"No change of venue shall be allowed in any of the proceedings had under the provisions of this article, except where the judge of the court in which the articles of association have been filed shall be disqualified for any of the reasons stated in the statute of this State relating to the change of venue in civil cases.

This provision applies only to proceedings to establish drainage districts as provided for in the act. Being a special statute, applicable only to proceedings under the Drainage District Law, it cannot be grafted upon other condemnation proceedings. This is in harmony with the plain wording of the statute. It was held in State ex rel. v. Knight, 26 S.W. (2d) l.c. 1016, 224 Mo. App. 761, that the provision in Section 10777, restricting changes of venue, did not apply to a mandamus suit against the officers of a drainage district organized under the act. It was said in State ex rel. Scott v. Trimble, 308 Mo. 123, 272 S.W. l.c. 68 (2):

"The Drainage Act is a code unto itself in respect to the manner of organization of drainage districts, the condemnation of lands by such districts, and the review of proceedings had under the act."

There is good reason for the restriction of the change of venue law in the Drainage District Act. The whole scheme of the law is based on the theory that the organization of a drainage district shall be under the supervision of the circuit court. In the organization of such a district the circuit court, under whose supervision it is being organized, must take into consideration the amount of damages awarded and benefits assessed in making its order authorizing the district to proceed with the work of reclamation or the dissolving of the district. [Sec. 10781, R.S. 1929.] The payment of the award of the commissioners does not divest title. [State ex rel. v. Trimble, 308 Mo. 123, 272 S.W. 71, (9-11).] [2] In a proceeding by condemnation, such as relator in this case instituted, the payment of the award into court divests title. [Sec. 1344, R.S. 1929; Ry. Co. v. Pfau, 212 Mo. 398, 111 S.W. 10.]

If exceptions are filed to the award the question of damages is all that is left in the case. [Sec. 1344, supra.] The outcome of that issue cannot and does not in any respect affect the decree of condemnation. Each landowner defendant may file exceptions. The exceptions filed are tried separately as to each landowner and the outcome of one does not affect the other. These proceedings are unlike to those provided for in the Drainage District Act.

Respondent in his brief says:

"If the court allows a new appraisement, same may be by jury in court in which proceedings are had."

[3] The right to a trial by jury does not depend upon any action of the court. Our Constitution guarantees that right. When exceptions are filed to the report of commissioners a trial court has no right to deny a jury trial. In Kansas City Sub. B. Railroad Co. v. Kansas City, St. L. & C. Railroad Co., 118 Mo. 599, 24 S.W. l.c. 483, this...