State v. Burney

• Decision Date: 01 November 1915
• Docket Number: No. 11915.,11915.
• Citation: 193 Mo. App. 326,186 S.W. 23
• Parties: STATE ex rel. WILSON v. BURNEY, Circuit Judge.
• Court: Missouri Court of Appeals

186 S.W. 23

193 Mo. App. 326

STATE ex rel. WILSON v. BURNEY, Circuit Judge.

No. 11915.

Kansas City Court of Appeals. Missouri.

November 1, 1915.

Rehearing Denied May 1, 1916.

Prohibition by the state, on the relation of J. D. Wilson, against Clarence A. Burney, Judge of the Circuit Court of Jackson County. Ordered that peremptory writ of prohibition issue.

O. H. Dean, T. A. Witten, Jules Rosenberger, I. N. Watson, and William Warner, all of Kansas City, for relator. John H. Lucas, T. A. J. Mastin, and Piatt & Marks, all of Kansas City, for defendant.

JOHNSON, J.

This is an original proceeding in prohibition against the Honorable Clarence A. Burney, assignment judge of the circuit court of Jackson county, the object of which is to prevent him from assuming jurisdiction over an action for damages brought by relator in the Independence division of that court on August 19, 1915, against Holly Jarboe et al., and to prevent him from proceeding to enforce an order he entered to quash a notice to take depositions issued and served by relator in that action. The material facts for consideration are as follows:

On July 31, 1915, relator, as plaintiff, filed an action in the circuit court of Jackson county at Kansas City against the election judges of a franchise election held in that city July 7, 1914, to recover damages on the ground that the defendants fraudulently had refused to count the vote he cast at that election, and on August 16, 1915, he served notice to take depositions at Independence, which notice was quashed by the court on motion of the defendants. Afterward relator filed a motion to dismiss that suit, which is still pending, and on August 19, 1915, filed another suit for the same cause and against the same defendants in the circuit court of Jackson county at Independence. Defendants answered September 13th, and at the same time filed a motion to transfer the cause to the circuit court at Kansas City for the reasons, inter alia, that all of the parties to the suit and "all parties having knowledge of the facts" are residents of Kansas City, and that relator filed the suit at Independence for the purpose of taking depositions therein in deprivation of the right of defendants under section 6390, R. S. 1909, to have a commissioner appointed to hear and take such testimony. While that motion was pending relator served notice to take depositions before a notary public in Kansas City on September 27th, and this was followed by a motion, filed by defendants, to quash the notice for reasons substantially the same as those assigned in support of the motion to transfer. The court at Independence heard and sustained the latter motion and entered an order sending the cause to division 1 at Kansas City.

The ground on which the motion was sustained was not stated in the order, nor was any ruling made on the motion to quash the notice for depositions. The judge of division 1, in turn, transferred the case to respondent, who assumed jurisdiction, heard the motion of defendants to quash the notice, and on September 28th entered an order sustaining that motion. In anticipation of the transfer of the cause to Kansas City defendants, on September 27th, filed in the latter court a second motion to quash the notice in which the grounds alleged were (1) that the notice "is an abuse of process by plaintiff, and an unlawful attempt by plaintiff to deprive these defendants of their right to have a commissioner appointed"; and (2) that "the petition herein is wholly insufficient in law to constitute any cause of action whatever." The alternative relief was prayed, "if said notice be not quashed or suppressed, to appoint a commissioner herein to take depositions herein."

As we understand the record, Judge Burney sustained the second motion obviously on the first ground, viz., that in bringing the suit in Independence, and in proceeding to take depositions in assertion of the right to have them taken without the appointment of a commissioner, relator was guilty of an attempt to abuse the process of the court, and to deprive defendants of a substantial right vouchsafed to them by the provisions of section 6390. We shall not assume that respondent fell into the patent error of sustaining the second ground, since it is elementary that a motion to quash a notice to take depositions cannot be made to do duty as a demurrer to the petition.

The facts we have stated present three important questions of law viz.: First. Did the circuit judge at Independence act within the scope of his proper jurisdiction in transferring the cause to the circuit court at Kansas City? If he did, the second question to arise relates to the jurisdiction or judicial authority of respondent to quash the notice, on the ground that it was an abuse of process and an unlawful attempt of relator to deprive defendants of the right they had under the statute to apply for the appointment of a commissioner to take the depositions. And the third question arising from the postulate that the quashing of the notice was improper relates to the subject of dealing with such ruling in a proceeding in prohibition. We shall discuss these questions in the order stated.

I. The statutes provide that the Sixteenth judicial circuit shall consist of the county of Jackson, in which are Kansas City, with more than 50,000 inhabitants, and Independence, with less. Section 3995, R. S. 1909. That judicial circuit, in common with others, has but one circuit court, which consists of a number of divisions at Kansas City and one division at Independence. In an act passed in 1905 (see Laws of 1905, page 121) the circuit court at Independence was expressly designated as "a division of the circuit court of the Sixteenth judicial circuit in Jackson county." The judge of that division was invested with "all the powers of any of the other circuit judges of said circuit court," and it was provided that "the court at Independence and each division of the court at Kansas City * * * may, for good cause shown, order any civil cause transferred from the court at Independence to the court at Kansas City, and from the court at Kansas City to the court at Independence." The judges of the Sixteenth circuit, including the judge of the Independence division, were empowered to frame and enter of record rules relating to the orderly and systematic transaction of business in the different divisions, among the subjects specially mentioned as falling within the purview of that power being that of providing for "the transfer of civil cases to and from each division." The clear purpose of this act was to place the Independence division with the group of divisions at Kansas City, and to provide for the transfer of civil cases to and from that division in the manner that such cases might be transfer of civil cases to and from that divisions to another; the only condition imposed as a predicate for the transfer of a case to or from Independence being that such transfer should be "for good cause shown." These provisions were re-enacted by the Legislature in 1913 (see Laws 1913, page 211, §§ 3 and 6) in an act for the creation of two additional divisions of the court at Kansas City.

Since there is but one circuit court in Jackson county, and the statutes do not attempt to divide that county territorially between the divisions at Kansas City and the division at Independence, section 1751, R. S. 1909, which provides that "suits instituted by summons shall, except as otherwise provided by law, be brought: First, when the defendant is a resident of the state, either in the county within which defendant resides, or in the county within which the plaintiff resides and the defendant may be found" — applies, and there is nothing in the law to prevent a resident of Kansas City from selecting the court at Independence as the place in which to bring an action against another resident of Kansas City. The territorial jurisdiction of the division at Independence being the whole of Jackson county, any resident of that county, wherever he may reside therein, may resort to that court if he chooses. His motive in preferring to bring his suit therein is immaterial, and he should not be judicially reprobated and punished for exercising the right the law bestowed upon him of bringing his suit in a court having jurisdiction to entertain such actions. We therefore begin with the premise that relator acted within his clear legal right in filing his second suit at Independence, and the mere fact that he did this for the purpose of securing an advantage in the taking of depositions, owing to the inapplicability of section 6390 to suits pending at Independence, would constitute no ground for the abatement or dismissal of his suit. But it does not follow as a corollary to this premise that he was entitled to have his suit remain at Independence in order that it might be exempt from the operation of the statutory provisions for the transfer of causes to which we have referred.

Those provisions were designed to serve the main purposes of expediting the transaction of business in the circuit courts of Jackson county by equalizing the work of the different divisions and of serving the interests and convenience of parties and witnesses. Necessarily a wide discretion was intended by the Legislature to be lodged in the judge in the determination of the question of whether or not a good cause was shown or appeared for the transfer of a cause, and the exercise of such discretion in a given case would not be reviewed in the appellate court, even on appeal, unless it clearly appeared that the limits of a broad discretion had been exceeded and the transfer had been made oppressively, capriciously, or for a reason stated in the order which would not constitute a good cause. The presumption of right acting in such cases is very strong, and in the instant case is not overcome, or in any wise impaired.

The order of transfer does not state the ground...