State v. Mazuch

• Citation: 68 S.W.2d 923
• Decision Date: 29 January 1934
• Docket Number: No. 17980.,17980.
• Parties: STATE ex rel. HART v. MAZUCH et al.
• Court: Missouri Court of Appeals

68 S.W.2d 923

STATE ex rel. HART v. MAZUCH et al.

No. 17980.

Kansas City Court of Appeals. Missouri.

January 29, 1934.

Rehearing Denied February 19, 1934.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be published in State Reports."

Prohibition proceeding by the State, on the relation of E. E. Hart, against Louis J. Mazuch and another. From an adverse judgment, relator appeals.

Affirmed.

E. E. Hairgrove and G. A. Stultz, both of Kansas City, for appellant.

Harding, Murphy & Tucker, of Kansas City, for respondents.

BLAND, Judge.

This is a proceeding in prohibition, originating in the circuit court. A preliminary writ was issued, which the court refused to make permanent, and relator has appealed.

The facts show that one Larry M. Dike commenced a suit against relator before Casimer J. Welch, a justice of the peace in Kaw Township, Jackson County, by filing a petition on two notes; that, thereafter, relator filed his motion and affidavit for a change of venue, alleging that he could not have a fair and impartial trial on account of the bias and prejudice of the inhabitants of Kaw Township and prayed a change of venue to some other justice of the peace in some township in Jackson County other than Kaw Township; that Justice Welch granted the change of venue, but instead of ordering the case sent outside of Kaw Township, he transferred it to respondent Justice Mazuch, another justice of the peace in Kaw Township; that no affidavit was filed disqualifying Justice Welch; that relator did not appear before respondent Mazuch, but defaulted, resulting in a judgment being rendered against him in the sum of $497.50; that relator took no appeal and took no action until steps were taken by the plaintiff in that case to enforce the collection of the judgment; that, thereupon, relator filed these proceedings in the circuit court, praying for a writ of prohibition against Justice Mazuch and Marion Nigro, his constable, to prohibit them from "further pursuing the execution of said judgment entered against plaintiff, and from taking any further cognizance of the said suit or case, before them touching or concerning the premises."

It is claimed that the court erred in not making the writ permanent for the reason that Justice Mazuch had no jurisdiction in the cause as Justice Welch should have sent the case outside of Kaw Township, under the provisions of sections 2254 and 2424, R. S. 1929 (Mo. St. Ann. §§ 2254, 2424, pp. 2413, 2490). While it is true that these sections of the statute and section 2255 (Mo. St. Ann. § 2255, p. 2413) provide for a change of venue to a justice outside of the township or district when the application is made based on the fact that the party cannot have a fair trial on account of the bias and prejudice of the inhabitants thereof, neither one of these sections of the statute applies to justices of the peace in Kaw Township. Changes of venue from justices in that township are provided for under sections 2389 and 2390, R. S. 1929 (Mo. St. Ann. §§ 2389, 2390, pp. 2479, 2480). See Scheerer v. Waltner et al., 225 Mo. App. 837, 29 S.W.(2d) 193.

Section 2254 (Mo. St. Ann. § 2254, p. 2413) is the general change of venue statute applicable to justices of the peace. Section 2424 (Mo. St. Ann. § 2424, p. 2490) applies to justice courts of cities (of 300,000 inhabitants or more) and has no application to such courts held in townships. We take judicial notice that Kaw Township has 200,000 and less than 400,000 inhabitants. Article 9, chapter 10 (§ 2373 et seq.), R. S. 1929 (Mo. St. Ann. c. 10, art. 9, § 2373 et seq., p. 2474 et seq.), covers justice courts in such townships. Section 2389 of article 9 (Mo. St. Ann. § 2389, p. 2479), provides for changes of venue in courts in such townships and is very similar to section 2254 (Mo. St. Ann. § 2254, p. 2413), except the latter section permits a change on account of the bias and prejudice of the inhabitants of the township, whereas, no such provision is made in section 2389. The last-mentioned section provides for changes of venue only on account of the bias and prejudice of the judge or that he is a material witness or kin to either party. As was said in the Scheerer Case, loc. cit. 841, 842 of 225 Mo. App., 29 S.W.(2d)...