State v. Denton

• Decision Date: 27 January 1908
• Citation: 107 S.W. 446,128 Mo. App. 304
• Parties: STATE ex rel. BIXMAN v. DENTON, Judge.
• Court: Missouri Court of Appeals

107 S.W. 446

128 Mo. App. 304

STATE ex rel. BIXMAN v. DENTON, Judge.

Kansas City Court of Appeals. Missouri.

January 27, 1908.

1. VENUE — CHANGE OF VENUE — STATUTORY RIGHT.

The right to a change of venue is purely statutory, and the statutes giving the right must be strictly construed.

2. SAME — "CIVIL SUIT" — CERTIORARI.

The phrase "civil suit" in Rev. St. 1899, § 818 [Ann. St. 1906, p. 789], providing that a change of venue may be awarded in any "civil suit" for causes enumerated, refers to the legal proceedings by which the rights and remedies of private individuals are enforced or protected, in distinction to the words "criminal case," which refer to public wrongs and their punishment, and includes certiorari to review proceedings of the county court resulting in the granting to one of a dramshop license, since the proceeding involves the right of the licensee to sell liquor as a dramshop keeper, which is a private right.

3. INTOXICATING LIQUORS — LICENSES — GRANT — REVIEW — CERTIORARI — PARTIES.

On certiorari to review the proceedings of the county court resulting in the granting to one of a dramshop license, the licensee is a proper party by reason of his interest, and because any adjudication will finally determine his right to a license.

4. PROHIBITION — ADEQUACY OF OTHER REMEDY.

Because the right of appeal lies is not a ground for denying the writ of prohibition, where the remedy by appeal is inadequate or not sufficiently speedy.

5. SAME.

A holder of a dramshop license is entitled to prohibition on the refusal of the court to grant his application for a change of venue in certiorari to review the proceedings in the county court granting him a license, the remedy by appeal from a judgment denying his right to a license not being adequate.

Original application in the Supreme Court by the state, at the relation of John N. Bix man, for a writ of prohibition against Charles A. Denton, as judge of the circuit court of Henry county. Granted.

Dickinson & Son, J. D. Lindsay, C. A. Calvird, and Parks & Son, for relator. John A. Gilbreath, for respondent.

BROADDUS, P. J.

As there is no controversy about the status of the case, we adopt the statement, so far as is pertinent, as we find it in the record made by relator:

"The relator, John N. Bixman, is a dramshop keeper in the city of Clinton, under a license issued to him in July, 1907. and expiring in January, 1908, under order and proceedings of the county court of Henry county, Mo., granting him such license at its July term, 1907. The respondent is the judge of the Twenty-Ninth judicial circuit, and, as such, judge of the circuit court of Henry county, Mo. On the 21st day of June, 1907, the relator, Bixman, who was then and for many years had been a dramshop keeper in the city of Clinton, Mo., filed in the office of the clerk of the county court of Henry county, Mo., his petition and application in due form for dramshop license, for presentation to the said county court at its next term, which convened on Monday, the 1st day of July, 1907. On Monday, July 1, 1907, the county court met to hold its July term, but was unable to hear the contests over the granting of saloon licenses on that day, and set over the hearing of the application until the next day, Tuesday, July 2, 1907, on which day the petition and application of relator, which had been on file since June 21, 1907, when they were filed with the clerk, were presented to the county court. There was a contest, both petitioners and remonstrators appearing in person and by counsel, and upon such hearing the county court on Tuesday, July 2, 1907, made an order granting license to relator to keep a dramshop for six months. The court approved the bond, and levied the ad valorem county and state license tax under provisions of section 2996, Rev. St. Mo. 1899, all of which were paid by relator, who received his license, and is operating a saloon under such license.

"At the regular September term, 1907, of the circuit court of Henry county, Mo., H. P. Faris, a resident and real estate owner of the city of Clinton, Mo., presented his petition for a writ of certiorari, being entitled `The State of Missouri, at the Relation of H. P. Faris, Relator, v. T. W. Ogg, M. L. Amick, and John Harrison, as Justices of the County Court of Henry County, Mo., Respondents.' To this application and petition, the justices of the county court demurred on the ground that the dramshop keeper, John N. Bixman, was a necessary party, and the real party in interest. This demurrer being overruled, the respondents filed motion to make said Bixman a party, and that he be notified of said proceedings for the reason that he was the real party in interest. The court sustained this motion, and ordered a writ of certiorari returnable on the 18th day of November, 1907. On November 18, 1907, the county judges made their return to the writ, and the said Bixman, having been duly served with notice, appeared and filed his application for a change of venue and notice in due form. Thereupon the relator therein. H. P. Faris, filed his motion to the court to refuse to grant a change of venue upon the ground that the right of the change of venue does not exist in certiorari proceedings, and that the court had no power to grant a change. The circuit court sustained this motion, and overruled the application for a change of venue. The circuit court then set the certiorari proceedings down for trial on November 22, 1907, and would have tried the cause on that date but for the provisional writ of prohibition issued and served on respondent in...