State v. Johnson

• Decision Date: 09 February 1916
• Docket Number: No. 19015.,19015.
• Parties: STATE ex rel. ODELL v. JOHNSON et al., Judges.
• Court: Missouri Supreme Court

182 S.W. 969

266 Mo. 662

STATE ex rel. ODELL v. JOHNSON et al., Judges.

No. 19015.

Supreme Court of Missouri.

February 9, 1916.

In Banc. Mandamus by the State, on the relation of Ruby E. Odell, to compel a special assignment of relator's cause, by Frank G. Johnson, Judge of the Assignment Division No. 5 of the Circuit Court of Jackson County, and another. Heard on the report of the commissioner recommending denial of a peremptory writ and quashing of the alternative writ. Alternative writ quashed, and peremptory writ denied.

C. W. Prince and E. A. Harris, both of Kansas City, and J. E. Westfall, for relatrix. Clyde Taylor, John H. Lucas, and Charles A. Stratton, all of Kansas City, for respondents.

BOND, J.

I. An original writ of mandamus was awarded by this court upon the relation of Ruby E. Odell, directed to the presiding judge of the circuit court of Jackson county sitting in the assignment division of that court by the authority of rule 18, adopted by the court, which imposed on him the duties of controlling the docket and assignment of causes. Our writ required said presiding judge to show cause why he should not make an immediate assignment and setting for trial of a certain suit pending in said court, brought by the relator against the Metropolitan Street Railroad Company and the Standard Oil Company. To this alternative writ the presiding judge at the time and his successor made returns praying for the quashing of our writ. Relator moved for judgment on said returns and thereafter filed an answer to them, wherefore a special commissioner was appointed to take the evidence and report his findings, and state his conclusions of law to this court. In compliance with this reference, Commissioner Hon. Willard P. Hall has made his report and has recommended that the alternative writ of mandamus awarded herein be quashed, and the prayer for the peremptory writ be denied. Counsel for the respective parties having been heard in oral argument and upon a submission of briefs on the issues involved, and the evidence taken before the commissioner, the cause was thereupon submitted to this court en banc for decision.

II. It is urged on behalf of the relator in support of the writ that the presiding judge of the assignment division of the circuit court of Jackson county was under the legal duty to assign her cause of action for trial to one of the divisions of that court in its regular numerical order, and the failure so to do was in disregard of rule 22 adopted by that court in the following terms:

"Assignment of Causes. At least two weeks before the beginning of each term, and as often thereafter as may be necessary, the presiding judge shall cause to be posted on the bulletin boards in the assignment division and the circuit clerk's office a notice requiring attorneys to file with the clerk of the assignment division on or before the date fixed in said notice a memorandum of each case at issue of which a trial is desired, between the numbers stated in said notice. A separate memorandum shall be filed for each case, and such memorandum shall contain the number and title of such case, and the attorneys of record of each of the parties thereto. * * * The presiding judge shall, from time to time make and cause to be `posted as above,' settings of the cases thus noted for trial. On the day that such cases are set for trial, they shall be placed in numerical order on the `trial' list, and the first case on such `trial' list shall be assigned to the next waiting division. * * *"

The transcript of the evidence filed by the commissioner shows that on the 20th of January, 1911, the foregoing rule was modified by the court en banc, and publication of such modification was made in the daily record, to wit:

"Notice. Beginning with the January term, a new plan will be inaugurated in the assignment of cases against the Metropolitan Street Railway Company. Twelve of the lowest numbered cases (no more than three cases in which plaintiffs are represented by the same attorneys) will be set down for each week. The court will expect plaintiffs to be ready when cases are reached for assignment and will expect defendant to keep three attorneys constantly available and ready to try any of such cases."

The report of the special commissioner further shows that in January, 1913, another change and modification was made in the foregoing rules, viz.:

"Metropolitan cases were separately listed without any limitation as to number except that the assignment judge would not set more cases for trial than thought proper, and enough cases would be set for trial to keep at least three divisions of the court always busy. And it was ordered that attorneys for plaintiffs in Metropolitan cases should receive twenty-four hours' notice of the setting of their cases for trial."

The authority of the circuit court of Jackson county en banc to make reasonable rules for the conduct of its business and modification thereof was inherent in its constitution as a court of general jurisdiction, and specially conferred by a statute including that court and defining its powers. Section 3970, R. S. Mo. 1909, provides:

"In addition to the ordinary power of making rules conferred by the general law, the court en banc may make all rules which its peculiar organization may, in its judgment, require, different from the ordinary course of practice, and necessary to facilitate the transaction of business therein."

Session Acts 1913, p. 212, provides:

"* * * Members of the court en banc * * * shall have power to frame and enact such rules for the numbering of civil cases now pending, or hereafter brought therein, for the proper distribution of civil cases for trial and disposition among the nine divisions of said court at Kansas City, and for the transfer of civil cases to and from each of said seven divisions, and the Independence divisions, which rules may in like manner be changed from time to time, as may be found necessary. * * *"

See Allen v. Calhoun, 6 Cow. (N. Y.) 32; Carpenter v. Jones, 121 Cal. 362, 53 Pac. 842.

The foregoing rules and modifications thereof were in force when this writ was prayed. The facts as to the suit brought by plaintiff against the Metropolitan Street Railway Company and Standard Oil Company were these; Said suit was begun on the 26th of November, 1910. Its docket number was 54386. Owing to the pleadings filed by defendants and the efforts made by one of them to remove the case, and owing to the retiracy of the original counsel for plaintiff, no issue was reached on the original petition, but an amended one was filed on the 9th day of April, 1914. To this amended petition separate answers were filed by the defendants on July 18 and August 21, 1914. In January, 1915, court en banc turned back in the listing of cases and made two calls, first, for the listing of cases for trial from No. 16 to 53997, and thereafter in the same month called for all cases from No. 54001 to 70000. On February 1, 1915, relator listed her case for trial under the last call. On June 7, 1915, relator filed a reply to the answers of defendants and at the same date filed a motion praying for cause of action be specially set or...