State v. Bacon

Citation107 Mo. 627,18 S.W. 19
PartiesSTATE ex rel. SCOTLAND COUNTY v. BACON, Judge.
Decision Date22 December 1891
CourtUnited States State Supreme Court of Missouri

John C. Moore, for relator. Thos. H. Bacon, in pro. per.

MACFARLANE, J.

This is a proceeding by mandamus to require respondent, as judge of the Hannibal court of common pleas, to proceed with the hearing and determination of a certain cause now pending in said court, as is alleged by relator. Respondent entered his voluntary appearance, waived the issuance of an alternative writ, and answered to the petition, as to the writ, which is to be taken as a return thereto. The petition sets out, in substance, that at the February term, 1891, there was pending in the circuit court of Scotland county a certain suit in which the state of Missouri, at the relation and to the use of Scotland county, was plaintiff, and Joel Ewing and 10 others were defendants. That on the 14th day of February, 1891, defendants filed an application for a change of venue in said cause, alleging, as cause therefor, the prejudice of the judge of said court. Thereupon the judge allowed the parties a reasonable opportunity to agree upon a special judge to try said cause, and they could not agree. Defendants thereupon asked a reasonable opportunity for the election of a special judge to try said cause. Thereupon it was shown and appeared, and the court found, that there were but two regular practicing attorneys of the court not engaged in the cause, who were present. That there were also present six other licensed attorneys, five of whom had no case on the docket, and one had a single case. One of these six had not had a case in court for several years. Three of them had not had a case in ten years. The two regular practicing lawyers said they would neither vote at an election nor act as special judge. Besides the regular practicing lawyers enumerated, there were six present who were engaged as attorneys in the case. They also said they did not wish to vote for the election of a special judge. The judge of the court then announced that, the parties not being able to agree upon a special judge, he would order a change of venue, because he did not believe it would be justice to either of the parties litigant to try the cause before a member of the bar who might be selected under the circumstances; because it had been stated in open court, and not denied, that the matter in issue had been a subject of two political campaigns in the county, and had created considerable personal feeling; that he feared an election would result in selecting some one who might be prejudiced or biased as a judge in the trial of the case; that it would be in the interest of justice, and justice demanded, since the parties could not agree, and refused to agree, on a person to try the case, that it be sent where a trial could be had before a regular circuit judge. For this reason he declined to permit an election to be had. A change of venue was ordered to the Hannibal court of common pleas, to which court the transcript was afterwards sent, and the case docketed therein. A motion was made by defendants in said court to strike the cause from the docket, which was heard by the court, respondent being the judge thereof, the motion sustained, and the cause stricken from the docket. The court refusing to renistate the cause, or to allow an appeal from the order striking it fom the docket, and refusing to hear and determine the cause, this proceeding was commenced in this court to require respondent to proceed and try the case. Respondent insists that the Hannibal court of common pleas never acquired jurisdiction of the cause, for the reason that the change of venue was improperly ordered.

The question thus presented is whether, under the circumstances shown by the foregoing statement, the judge of the Scotland county circuit court had authority to order a change of venue in the cause, without first allowing a reasonable opportunity "for the election of a special judge, as provided by law." The solution of the question involves the construction of section 2262 of the article relating to changes of venue in civil cases, and sections 3323 and 3324 of the article on circuit courts, all of the Revised Statutes of 1889. These sections are as follows: "Sec. 2262. If reasonable notice shall have been given to the adverse party, or his attorney of record, the court or judge, as the case may be, shall consider the application, and, if it be sufficient, a change of venue shall be awarded to some county in...

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20 cases
  • Benton Land Company v. Zeitler
    • United States
    • United States State Supreme Court of Missouri
    • 2 Junio 1904
    ...... certificate of the judgment and the defendants have filed an. abstract of the record in this court. . .          Upon. this state of the record the defendants here set up two. principal contentions, to-wit, first, that the unrecorded. quitclaim deed from the Benton Land ......
  • State ex rel. Dunlap v. Higbee
    • United States
    • United States State Supreme Court of Missouri
    • 17 Noviembre 1931
    ...(1) This proceeding is a proper proceeding to test the jurisdiction of respondent. State ex rel. v. Fort, 178 Mo. 518; State ex rel. v. Bacon, 107 Mo. 627; State ex rel. v. O'Bryan, 102 Mo. 254; ex rel. v. Denton, 128 Mo.App. 304; State ex rel. v. Dabbs, 118 Mo.App. 663; State ex rel. v. Fl......
  • State ex rel. Kansas City Public Service Co. v. Waltner
    • United States
    • United States State Supreme Court of Missouri
    • 25 Marzo 1943
    ...228; State ex rel. v. Knight, 26 S.W.2d 1011; State ex rel. v. Sevier, 98 S.W.2d 980; Pennfield v. Vaughan, 169 Mo. 371; State ex rel. v. Bacon, 107 Mo. 627; State v. Bailey, 126 S.W.2d 224; State ex v. Bates, 286 S.W. 420. (5) Prohibition is the proper remedy; and the commissioner properly......
  • State ex rel. Kansas City Pub. Serv. Co. v. Waltner, 37566.
    • United States
    • United States State Supreme Court of Missouri
    • 25 Marzo 1943
    ...rel. v. Knight, 26 S.W. (2d) 1011; State ex rel. v. Sevier, 98 S.W. (2d) 980; Pennfield v. Vaughan, 169 Mo. 371; State ex rel. v. Bacon, 107 Mo. 627; State v. Bailey, 126 S.W. (2d) 224; State ex rel. v. Bates, 286 S.W. 420. (5) Prohibition is the proper remedy; and the commissioner properly......
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