State v. O'Hallaron

• Decision Date: 06 June 1910
• Citation: 129 S.W. 227,144 Mo. App. 570
• Parties: STATE ex rel. KIRN v. O'HALLARON, Justice of the Peace.
• Court: Missouri Court of Appeals

129 S.W. 227

144 Mo. App. 570

STATE ex rel. KIRN v. O'HALLARON, Justice of the Peace.

Springfield Court of Appeals. Missouri.

June 6, 1910.

JUSTICES OF THE PEACE (§§ 73, 74)—CHANGE OF VENUE.

Rev. St. 1899, § 6518 (Ann. St. 1906, p. 3267), gives justices of the peace jurisdiction coextensive with the city in which they are elected. Section 3838 (page 2128) gives them jurisdiction coextensive with the county for which they are elected. Article 22 relates to justices of the peace in cities of 300,000 inhabitants or more, which includes St. Louis city, but contains no provision as to the change of venue or other proceedings before justices in such cities. Section 6519 (page 3267) contained therein gives such justices all powers and jurisdiction

conferred by law on justices of the peace not inconsistent with the article, and provides that all existing provisions now applicable to justices of the peace and the practice and procedure in their courts shall be applicable in all respects to justices elected under such article. Section 6513 (page 3267) provides that all laws in force concerning justices applicable to townships shall be applicable to the justices of such districts as provided for therein, except as inconsistent with the other provisions of the article. Section 3973 (page 2180) requires a justice to allow a change of venue upon the filing of an affidavit therefor, and to immediately transmit all the original papers and the transcript of his docket entries to some convenient justice in the township if there be one, unless the moving party states that such other justice is a material witness, etc. Held, that section 3973, relating to change of venue from justices' courts in townships, is applicable to justices in the districts of St. Louis city; the legislative intent being to make the practice before justices as uniform throughout the state as practicable, so that a justice of the city of St. Louis, upon granting change of venue for prejudice, could not transfer the case to a justice of another district within the city, but must send it to the justice in the same district.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

Application for prohibition by the State, on the relation of George C. Kirn, against Anthony A. O'Hallaron, Justice of the Peace. From a judgment denying the writ, relator appeals. Reversed and remanded,

F. A. C. McManus, Nat. Steiner, and McShane & Goodwin, for appellant. J. M. Lashly, for respondent

NIXON, P. J.

The relator, George C. Kirn, was sued before R. C. Grier, a justice of the peace in the Fourth justice's district, St. Louis, Mo., by W. S. Lawrence, a physician, upon an account for medical services in the sum of $40. Relator filed an affidavit in said court setting up the statutory ground of prejudice of said Justice Grier, and prayed for a change of venue on account of such prejudice. Instead of said justice transmitting the papers to the other justice in the same district, he sent them to Anthony A. O'Hallaron, one of the two justices in the Fifth justice's district in said city. Relator appeared specially before Justice O'Hallaron, and filed a motion to dismiss the cause, for the reason that the court of said Justice O'Hallaron did not have jurisdiction; said court not being in the same district as that of Justice Grier, before whom the suit was commenced. This motion being overruled, relator applied to the circuit court for a writ of prohibition to prohibit the said Justice O'Hallaron from proceeding to hear and determine said cause in said Fifth district because of lack of jurisdiction, and the usual provisional writ was issued. Respondent filed a general demurrer to the petition which was sustained, and, relator declining to plead further, the court entered final judgment against relator and denied the writ prayed for. Relator has appealed.

The question presented is: In the city of St. Louis, where there are two justices in one district and a change of venue is taken in a pending cause from before one of them on account of prejudice of such justice, to what other justice must said cause be transmitted? Counsel for respondent, relying upon section 6518, Rev. St. 1899 (Ann. St. 1906, p. 3267), which provides (in part) that "every justice of the peace shall have jurisdiction coextensive with the city in which he shall be elected," contends that the justice from whom the change of venue was taken was authorized to send the transcript and papers in the case to any other justice of the peace within the city of St. Louis, and that such other justice receiving the papers would have jurisdiction to hear and determine the cause. In 2 Rev. St. 1899, beginning with section 6508 (page 3266), we find the subject of justices of the peace treated as relating to cities of 300,000 inhabitants or more, which, of course, applies to the city of St. Louis. This chapter makes no provision as to service of process, appearances, pleadings, judgments, execution, etc., or as to changes of venue or other proceedings before justices of the peace in such cities. The latter part of section 6519 (page 3267), in said chapter, provides that justices in the city of St. Louis "shall have all powers and jurisdiction now conferred by law on justices of the peace, not inconsistent with the provisions of this article; and all existing provisions of law now applicable to justices of the peace and the practice and procedure in their courts shall be applicable in all respects to the justices elected under this article." Section 6513 (...