State v. Cockrell

• Decision Date: 22 December 1919
• Docket Number: No. 20950.,20950.
• Citation: 280 Mo. 269,217 S.W. 524
• Parties: STATE ex rel. CALDWELL v. COCKRELL, Circuit Judge.
• Court: Missouri Supreme Court

217 S.W. 524

280 Mo. 269

STATE ex rel. CALDWELL v. COCKRELL, Circuit Judge.

No. 20950.

Supreme Court of Missouri, in Banc.

December 22, 1919.

Proceedings by the State, on the relation of J. M. Caldwell, to prohibit Hon. Ewing Cockrell, judge of the circuit court of Johnson county, and of the circuit courts of other counties in the Seventeenth judicial district, from going further with a proceeding commenced by him against the relator for contempt. Preliminary rule discharged and writ denied.

A. Musser, of Holden, M. D. Aber and R. M. Robertson, both of Warrensburg, and E. C. Littlefield, of Knobnoster, J. M. Crutchfield, S. J. Caudle, W. L. Chaney, W. E. Suddath, and Nick M. Bradley, all of Warrensburg, for relator.

James C. Jones, of St. Louis, for respondent.

GOODE, J.

The respondent, Hon. Ewing Cockrell, is judge of the circuit court of Johnson county, and of the circuit courts of the other counties in the Seventeenth judicial circuit. The relator, J. M. Caldwell, is clerk of the circuit court of Johnson county, and the purpose of this case is to prohibit the respondent, as judge of said court, from going further with a proceeding commenced by respondent against relator for a contempt in refusing to record two specific entries he was ordered by respondent to record, and for recording instead two other and different entries not directed by the court.

One of the entries was directed to be recorded in the journal of the court's proceedings on the 15th day of October, 1917, in the case of Laura L. Maupin against the Southern Surety Company, No. 5381, which entry was as follows: "Defendant, by attorney, files answer." Instead of recording said entry as directed, the clerk recorded the following: "Answer filed. Now at this day comes the defendant aforesaid by its attorney, and files its answer to plaintiff's petition herein." The second entry relator refused to record as directed was a judgment of divorce rendered the 9th day of October, 1917, and to be entered on the journal of the proceedings of the court that day, namely, the judgment In the case of Georgia Scott against Vernon Scott, No. 5356. The entry of judgment to be made as directed by the court was this:

(A) "Plaintiff makes proof of publication in [b] Johnson County Democrat). Evidence submitted. Judgment for plaintiff on grounds [c] defendant has absented himself without reasonable cause for more than a year), with restoration of former name, [d] Georgia Ann Hightower.)

"The true and complete record herein is the matter under heading Dvn 2 in Record Book 38, beginning at page 311, incorporated into the above record and entry, with the matter contained in the above alphabetically numbered brackets inserted in the correspondingly numbered brackets under the said heading, and all written and construed as provided by rules and order of court Sept. 3, 1917, as shown in Record Book 38, beginning at page 296."

(As it will be necessary to refer again to this form, we have designated it by the letter "A.")

Instead of the foregoing relator recorded the following entry:

"Now, at this day comes the plaintiff herein, in person and by her attorney, and files proof of publication of the order of publication of notice of this suit heretofore made in this cause; and said defendant, although thereby duly summoned herein more than thirty days before the first day of this term of this court, and being now solemnly called, comes not, but herein makes default; and this cause, being now called for hearing, is taken up and submitted to the court upon the petition, proofs, and the evidence of credible witnesses; and the court, after seeing and hearing and duly considering the same, doth find that said defendant has been duly served with process herein by publication of notice of this suit and all the objects thereof for four weeks successively in the Johnson County Democrat, a weekly newspaper published in the county of Johnson and state of Missouri, the last insertion thereof being more than thirty days before the first day of this term of this court; and that said defendant has failed to appear, answer, or plead herein, but has wholly made default, and plaintiff's petition stands as confessed by said defendant. The court further finds that on or about the 15th day of January, 1911, the plaintiff was lawfully married to the defendant, and continued to live with him as his wife from and after said date until the 1st day of March, 1911; that plaintiff faithfully demeaned herself and discharged all her duties as the wife of the defendant, and at all times treated him with kindness and affection, but that defendant, wholly disregarding his duties as the husband of the plaintiff, did on the 1st day of March, 1911, without any cause or excuse, absent himself from plaintiff, and ever since has, and still does, so absent himself, without any cause whatever, for more than one whole year next before the filing of her petition herein. The court further finds that the said plaintiff is now a resident of Johnson county, Missouri, and has lived in the state of Missouri more than one whole year next before the filing of her petition in this suit; that the plaintiff is a person of good moral character, and is the innocent and injured party and entitled to the relief prayed.

"It is therefore ordered, adjudged, and decreed by the court here that the bonds of matrimony contracted by and between the said plaintiff and defendant be, and hereby are, set aside and for naught held; that the said plaintiff be, and hereby is, divorced from the said defendant; and that her former name of Georgia Ann Hightower be restored to her; and that the plaintiff pay the costs of this suit."

Relator in his petition and suggestions for the writ of prohibition does not specifically admit or deny that he had refused to record the two entries that he was charged, in the citation to him in the contempt proceeding, with refusing to enter. Neither does he admit or deny having recorded the two different entries he is charged in said citation with having recorded contrary to the court's command. But he admits that he had refused continually to comply with the orders of respondent, as judge of said court, in respect of the forms in which the proceedings of the court should be recorded, and that he had refused to comply with a body of rules the court had prescribed to regulate the recording of entries. For the clerk's disobedience in refusing to record the particular entries set out above and by the respondent directed, and substituting other entries not directed by the respondent, the proceeding in contempt sought to be prohibited was commenced by a citation issued by respondent to relator, requiring the latter to appear before the former as judge of said Johnson county circuit court, and show cause, if any there was, why relator should not be punished for contempt. Thereupon relator applied to this court for the writ of prohibition, and pursuant to his application a preliminary rule was issued, commanding respondent to appear here and show cause, if any he had, why the writ should not be granted. The petition of relator states that on September 3, 1917, and during the June term of said circuit court, respondent promulgated a series of rules and orders, and instructed relator, as clerk, to spread them on the records of the court; which direction relator complied with, and said rules and orders were duly recorded in volume 38 of said records, commencing at page 296 and ending on page 315; that is, on 19 pages. Said rules and orders are recited in full in relator's petition, but they are too long to be copied, and must be described rather than recited or epitomized. They began with the statement that the object of the court in promulgating them was to procure uniformity, regularity, and accuracy in transacting the business of the court, and to promote economy, simplicity, and efficiency. To this end nearly 100 forms for entries to be used in recording various proceedings are prescribed: The convening of court; opening the term; excusing petit jurors and grand jurors; impaneling grand juries; filing of answer by one defendant; filing separate answers for several defendants; of joint and separate answers; the filing of a demurrer to a petition by one defendant or by several defendants; of a demurrer to an answer by one or several plaintiffs; for an order sustaining a demurrer; an order for leave to plead; the filing of motions; sustaining motions; overruling motions, etc. Those forms relate to matters occurring in the progress of a case and leading up to the trial. But there are forms prescribed for more important matters, such as granting a change of venue and for various judgments, to wit, for the plaintiff by default; for the plaintiff when a jury is waived and the trial is by the court; when a jury is waived, a court trial and a finding for the defendant; when there is a jury trial and verdict for the plaintiff, or a jury trial and verdict for the defendant; when a jury trial is started and adjourned from day to day and the trial resumed; a judgment in a divorce case on personal service and default by the defendant; judgment in the like case for the plaintiff, with custody of children awarded; when the defendant defaults and divorce is granted on personal service, with restoration of the plaintiff's maiden name; default by defendant and a divorce granted on service by publication, with restoration of plaintiff's former name (it is this form which relator refused to follow in recording the judgment in the case of Georgia Scott against Vernon Scott); judgment in a suit to quiet title on service by publication to unknown defendants; judgment on a plea of "guilty" in misdemeanor cases, and on the same plea in felony cases, etc. Two forms are prescribed in the rules for entries of minor proceedings happening during the course of a case—a short form, which is to be entered in the journal of the proceedings...