State v. Green

• Decision Date: 11 September 1940
• Docket Number: No. 6235.,6235.
• Citation: 143 S.W.2d 64
• Parties: STATE ex rel. FRAZIER v. GREEN, Judge, et al.
• Court: Missouri Court of Appeals

143 S.W.2d 64

STATE ex rel. FRAZIER v. GREEN, Judge, et al.

No. 6235.

Springfield Court of Appeals. Missouri.

September 11, 1940.

Mandate September 23, 1940.

"Not to be published in State Reports."

Original prohibition proceeding by the State, on the relation of Carl E. Frazier, against the Honorable Will H. D. Green, Circuit Judge of the Twentieth Judicial District of the State of Missouri, and as such the Circuit Judge of Shannon County, Mo., and W. E. Stevens.

Peremptory writ granted.

Allen & Barrett, of Springfield, and John P. Moberly, of Houston, for relator.

F. B. Greene, of Van Buren, for respondents.

TATLOW, Presiding Judge.

This is an original proceeding to prohibit the respondent, as judge of said court, from proceeding further in a contest growing out of the primary election held in Shannon County, on the 6th day of August, 1940, at which primary election the relator, Frazier, and W.E. Stevens were opposing candidates for nomination for the office of Judge of the County Court from the Northern District of said county.

The contestant, W. E. Stevens, served upon the said Carl E. Frazier, as contestee, a written notice dated the 12th day of August, 1940, and which was served on the same day, which said notice, together with the service thereon, is in words and figures as follows, to-wit:

"To Carl E. Frazier, Contestee:

"You are hereby notified that, you and I have been opposing candidates for the nomination for the office of Judge of the County Court for the Northern District, of Shannon County, Missouri, at the primary election held by the Democratic voters of said County and District on the sixth day of August, 1940, and you having been duly declared nominated for said office by the official count made by the County Court on the 9th day of August, 1940, and that I shall contest your nomination on the grounds and points as follows, to-wit: Votes for contestant were counted for contestee; votes were cast by voters from the Southern District for the Contestee; Irregular and illegal votes for Contestee were counted in precincts of Blair Creek, Bowlan Nos. 1 & 2, Moore, Jackson Nos. 1 & 2, Casto No. 1 and Eminence.

"You are further notified that a verified petition setting out the grounds and points, as above, fully, will be filed with the Clerk of the Circuit Court of Shannon County, Missouri, on the 12th day of August, 1940, and said petition will be presented to the Judge of the said Circuit Court on Tuesday, August 13th, 1940, at 2 o'clock in the afternoon of said day, and the said judge will be asked to convene a special term of the Shannon County Circuit Court to hear said petition.

"In Witness Whereof, I have hereunto set my hand this 12th day of August, 1940.

                   "(Signed) W. E. Stevens, Contestant."
                

On the same day, to-wit, the 12th day of August, 1940, respondent, as judge of said court, made the following order, omitting caption:

"Now on this 12th day of August, 1940, comes W. E. Stevens, contestant in the above entitled cause, and presents his petition to the undersigned Judge of the Circuit Court of Shannon County, Missouri, alleging fraud, misconduct and irregularity in the counting of the vote for the nomination on the Democratic Ticket of Judge of County Court for the Northern District of Shannon County, and the said Circuit Court of Shannon County, being in vacation, it is therefore ordered by the undersigned, Judge of the said Shannon County Circuit Court, that the said Circuit Court of Shannon County be convened in special session on Saturday, August 17th, 1940, for the purpose of hearing the above mentioned petitioner on the merits of the cause.

"Given under my hand in chambers this 12th day of August, 1940.

                    "(Signed) Will H. D. Green, Judge
                        "Shannon County Circuit Court."
                

On August 12th, 1940, the contestant filed in said court a petition to contest the nomination of the said Carl E. Frazier. At the end of the petition the following notation appears:

"Petition presented to me, Will H. D. Green, Judge of the Circuit Court of Shannon County, Mo., on Monday the 12th day of August, 1940.

                   "(Signed) Will H. D. Green, Judge."
                

On August 13th, 1940, a writ of summons was issued by the Clerk of the Circuit Court directed to the Sheriff of Shannon County, Missouri, which said summons, together with return thereon by the sheriff, is in words and figures as follows, to-wit:

"Summons

"The State of Missouri, To the Sheriff of Shannon County — Greeting:

"We Command you to summon Carl E. Frazier, if he be found in your County, to appear before our Circuit Court, to be begun and holden within and for the County of Shannon, at the Court House in the town of Eminence, in said County, on Saturday, the 17th day of August, 1940, then and there before the Judge of our said Court, to answer the petition of W. E. Stevens, and have you then and there this Writ, with the return of your action thereupon.

"Witness My hand as Clerk of said Court and the seal thereof. Done at office, in Eminence, Missouri, in the County aforesaid, on the 13th day of August A. D. 1940.

                    "(Signed) Clerk of the Circuit Court
                                "By Deputy Clerk."
                

"Sheriff's Return.

"Executed the within Writ, in the County of Shannon and State of Missouri, on the 13th day of August, 1940, by delivering a certified copy of the within Writ and a certified copy of Contestant's petition, to the within named Carl E. Frazier, Contestee, said copies were furnished and certified to by the Clerk of the Circuit Court of Shannon County Missouri.

                        "(Signed) J. F. Powell, Sheriff
                            "Shannon County, Missouri."
                

The summons was not filed in court until August 19th, 1940. In the meantime, on August 17th, 1940, the return day of the writ, the contestant appeared for the purpose only of questioning the jurisdiction of the court and filed his motion to dismiss the proceeding, alleging numerous grounds therefor, among others, that no process of summons had ever been issued or served on contestant as by law provided. The sheriff returned the summons with his return on August 19th, 1940, and the court proceeded to hear the motion, and over the objection of the contestant, permitted the contestee to introduce parol evidence to supplement and amplify the return of the sheriff on the writ of summons so as to show contrary to the return itself that the sheriff, in fact, delivered a copy of the writ and a certified copy of contestant's petition to the contestee on the 13th day of August, 1940, and on conflicting evidence, found that the sheriff had so served a copy of the writ together with the petition.

The relator refused to appear further and the judge granted the relator time in which to apply to this court for a writ of prohibition to prohibit further action by the court for the reason, among others, that the court had not acquired jurisdiction of the person of the relator.

The petition for the writ of prohibition was filed in this court on the 29th day of August, 1940.

In lieu of the issuance of an alternative writ this court issued a stop order and the clerk of the court notified the respondent, Green, of the stop order by telegram. The matter was set down for hearing in this court on the 4th day of September, 1940. The counsel for petitioner and for respondent Green appeared and orally argued the case, and in addition thereto, each of the parties have submitted typewritten suggestions and briefs in support of their respective contentions, and have treated the stop order as equivalent to the issuance and service of an alternative writ.

The sole question which we think is necessary to determine in order to finally dispose of the controversies, is whether the respondent, as judge of the Circuit Court of Shannon County, could and did acquire jurisdiction over the person of the relator by the court's finding on parol evidence, that the sheriff, in fact, served on the relator as the contestee in the proceeding, a copy of the writ of summons as well as a copy of the contestant's petition. The Supreme Court of this state, in the case of Smoot v. Judd, 184 Mo. 508, loc. cit. 518, 83 S.W. 481, 484, has this to say with reference to the return of the sheriff on a writ of summons: ...