State v. Dabbs

• Citation: 118 Mo. App. 663,95 S.W. 275
• Parties: STATE ex rel. SMITH-KERNOHAN CO. v. DABBS. Judge.
• Decision Date: 04 June 1906
• Court: Court of Appeal of Missouri (US)

95 S.W. 275

118 Mo. App. 663

STATE ex rel. SMITH-KERNOHAN CO. v. DABBS. Judge.

Kansas City Court of Appeals. Missouri.

June 4, 1906.

1. VENUE — CHANGE OF VENUE — GENERAL STATUTES—APPLICATION.

The general statute relating to changes of venue, applies to Jasper county notwithstanding Laws 1901, p. 120, dividing the Twenty-Fifth judicial circuit into two divisions and providing (section 6, p. 122) for changes of venue in actions pending in the circuit court of such county.

2. SAME — GROUNDS — PREJUDICE OF JUDGE— SUCCESSIVE APPLICATIONS.

Under the general statute providing for a change of venue on account of prejudice of the judge against the applicant or undue influence of the opposite party, or where the judge is related to either party or is interested in the case, or has been a counsel for either party, the applicant is entitled to but one change of venue where his application is based on the prejudice of the judge.

3. SAME—DISCRETION OF JUDGE.

Where an application for a change of venue in due form is made on the ground of alleged prejudice of the judge, to whom the application is presented, the judge has no discretion but to order the cause removed from himself.

4. SAME — DISQUALIFICATION OF OTHER JUDGES.

Laws 1901, p. 120, divides the Jasper circuit court into two divisions, and section 6 declares that no change of venue shall be allowed by such court for any reason that may be alleged against the judge of the division to which the same is assigned, but that if any such reason exists the cause shall be transferred to the division held by the other judge, except that if reason exists against both the judges of the court, then such change may be allowed to the circuit court of some other county, as provided by the General Statutes, or otherwise disposed of according to law. Held, that under such section, construed in connection with Rev. St. 1899, § 822, relative to changes of venue generally, where an application for a change of venue sought to disqualify the judges of both divisions on the ground of prejudice, it was the duty of the judge to whom the application was presented to satisfy himself as to the disqualification of the other judge, and, if he was not satisfied that the disqualification existed, to send the case to him for trial.

Mandamus by the state, on relation of the Smith-Kernohan Company, against Hugh Dabbs. Writ denied.

McIndoe & Thurman, for relator. Cole. Burnett & Williams, for respondent.

ELLISON, J.

The relator, a corporation, is defendant in an action pending in the circuit court for Jasper county before the respondent, Judge Dabbs, as one of the judges of that court. It seeks to compel respondent by this proceeding in mandamus, to grant a change of venue to some other circuit court, which it is conceded he refused to do.

Relator made application in due form for the change of venue assigning as the cause that respondent was prejudiced against it so that it could not have a fair trial, and that the same cause existed against Howard Gray, the judge of the other division of said court. The respondent sustained the application as to himself, but overruled it as to Judge Gray, the effect of which action is to put defendant to trial before the latter judge, and to refuse to send the cause to some other circuit court. For some time prior to 1901, Jasper county alone composed the Twenty-Fifth judicial circuit, with one judge. But by the Laws 1901, p. 120, two judges were provided for said court, which was divided into two divisions; one judge to preside in one, and the other judge in the other. At the time of this proceeding and controversy the respondent presided in Division 2, and Judge ...