State v. Flournoy

• Decision Date: 19 February 1901
• Citation: 60 S.W. 1098,160 Mo. 324
• Parties: STATE ex rel. SPRAGUE et al. v. FLOURNOY, Special Judge.
• Court: Missouri Supreme Court

60 S.W. 1098

160 Mo. 324

STATE ex rel. SPRAGUE et al. v. FLOURNOY, Special Judge.

Supreme Court of Missouri.

February 19, 1901.

CHANGE OF VENUE — DISQUALIFICATION OF JUDGE — DEPOSIT OF COSTS — ELECTION OF SPECIAL JUDGE — NECESSITY OF CONSENT OF PARTIES — JURISDICTION.

1. Under Rev. St. 1899, § 833, requiring a party to an action in the circuit court to deposit $10 on applying for a change of venue to a different county, such motion is properly denied where such deposit is not made.

2. Rev. St. 1899, § 833, requires a party to an action in the circuit court to deposit $10 on applying

for a change of venue to another county. Section 822 provides that such change shall not be granted outside the county on the ground of passion and prejudice of the judge if the parties request the election of a special judge. The parties to an action in which a motion for change of venue for disqualification of the judge was made did not request the election of a special judge, but an election was ordered, and a special judge elected. Held, that the special judge had no jurisdiction to try the cause, since, even though the $10 deposit had not been made, the cause should have been changed to another county, the parties not having requested the election of a special judge.

3. Rev. St. 1899, § 1679, providing that when a judge cannot properly preside in a cause, and the parties fail to agree to select an attorney as a special judge, the attorneys may select a judge to try the cause, does not authorize the election of a special judge to try a cause without the consent of the parties thereto after the interposition of a motion for change of venue based on the disqualification of the judge.

In banc. Original mandamus by the state, on the relation of Olivia Sprague and others, against William S. Flournoy, special judge. Writ denied.

Warner, Dean, McLeod & Holden and Paxton & Rose, for relatrix. Sam. W. Hilt, for respondent.

SHERWOOD, J.

A suit respecting a will was pending before the circuit court of Jackson county at Independence between J. J. Vaile and others, plaintiffs, against Olivia Sprague and others, defendants. Plaintiffs filed an affidavit for a change of venue, based on the ground of the defendants having an undue influence over the mind of the judge, and also over the mind of the Honorable John H. Slover. Thereupon it was shown by the affidavits of O. H. Dean and W. G. Rose, attorneys for defendants in the cause, that the two other circuit judges of the same court, to wit, Hon. James Gibson and Hon. E. P. Gates, were disqualified by reason of the fact that they had been of counsel in matters of the estate of H. M. Vaile, deceased. J. J. Vaile, who made the affidavit on part of plaintiffs for a change of venue, admitted on cross-examination that Judges Gibson and Gates had been thus interested, and were not qualified to try the cause. The following entries were made in the cause aforesaid: "Now, at this day come the parties hereto by their respective attorneys. Plaintiffs now file their application for a change of venue herein for the reason that defendants have an undue influence over the minds of the Honorable John W. Henry and the Honorable James H. Slover, judges of this court; and defendants file the affidavit of O. H. Dean, W. G. Rose, alleging that Honorable James Gibson and Honorable Edward P. Gates, the only remaining judges of this court, have been of counsel in matters concerning the estate of H. M. Vaile, deceased, and are not qualified, and refuse to try this case; and it appearing to the court that none of the judges of this court can properly proceed in this cause, and that the parties hereto, although having been given an opportunity to agree upon one of the attorneys of this court and bar to proceed and hold court for the trial of this cause, fail to agree upon such attorney: It is therefore ordered by the court that the clerk of this court proceed to hold an election for the purpose of choosing a special judge to try this cause. To which rulings and actions of the court the plaintiffs duly except, and obtain leave of court to file their bill of exceptions thereto within twenty days. Thereupon the clerk of this court now proceeds to hold the election aforesaid, and, there being more than five attorneys of this court and bar present, and the Honorable Wm. S. Flournoy, one of the attorneys present (having the qualifications of a circuit judge), having received a majority of the votes cast, is by the clerk declared to be elected special judge to try this cause. Now comes Hon. Wm. S. Flournoy, and files his oath of office as special...