State v. McKee

• Decision Date: 30 May 1899
• Citation: 150 Mo. 233,51 S.W. 421
• Parties: STATE ex rel. HERRIFORD v. McKEE, Judge.
• Court: Missouri Supreme Court

51 S.W. 421

150 Mo. 233

STATE ex rel. HERRIFORD v. McKEE, Judge.

Supreme Court of Missouri.

May 30, 1899.

CHANGE OF VENUE — REVIEW — MANDAMUS — CORRECTION OF ERRONEOUS ORDER — ADEQUATE LEGAL REMEDY — PETITION.

1. Error in awarding a change of venue cannot be corrected unless excepted to in the court which ordered the change, since the erroneous order, being within the court's jurisdiction, is not a nullity.

2. Under Rev. St. 1889, § 2262, as amended by Laws 1895, p. 93, providing that a change of venue to another county because of disqualification of the judge shall not be awarded if the parties agree on a special judge, or request the election of one, a change of venue may be ordered because of the disqualification of the judge without asking the parties whether they will agree on a special judge or consent to the election of one, it being incumbent on them to make the agreement or consent to the election on their own motion.

3. On an application for a writ of mandamus to the judge of a circuit court to compel him to reinstate a cause on the docket after he has granted a change of venue therein to another county, because the granting of the change was erroneous, it will be presumed that the order granting the change was correct until the contrary appears.

4. Mandamus will not lie to compel the circuit court to take jurisdiction of a cause after it has erroneously granted a change of venue therein, the granting of a change of venue being within its jurisdiction.

5. An order granting a change of venue being reviewable on appeal or error, mandamus will not issue to correct it, though the aggrieved party, by failing to except, lost his right to have it reviewed.

6. A petition for mandamus to the circuit court to compel it to take jurisdiction of a suit because its order granting a change of venue therein was erroneous in that it was made without asking the parties whether they would agree on a special judge, or consent to the election of one, must show that at the time the change was ordered there was present or available a person competent to act as special judge, or that the requisite number of lawyers were present, from whom and by whom a special judge could be elected.

In banc.

Application by the state, on the relation of Esther Herriford, for a writ of mandate to Edwin R. McKee, circuit judge of Knox county. Denied.

D. A. Rouner and O. D. Jones, for relator. J. M. Payne and C. A. Stewart, for respondent.

SHERWOOD, J.

This proceeding questions the correctness of the action of Judge McKee in awarding a change of venue from the circuit court of Knox county to that of Schuyler county. The petition for the alternative writ, among other things, in substance and form alleges the presentation of the application upon due notice given, "based alone on the ground of the prejudice and disqualification of the judge," etc., whereupon the respondent judge "immediately awarded the venue to the circuit court of Schuyler county, Missouri, without asking the parties whether they could or would agree on a special judge to try the cause, or whether both parties would consent to the election of attorney at the bar present, at an election to be held by the clerk, as provided by law; and failed and refused to enter on the record preceding the awarding of the change of the venue to Schuyler county the truth and the fact as to said agreement or failure of the parties to agree as aforesaid." The petition then alleges the sending by the clerk of the Knox circuit court of the transcript, etc., to the clerk of the Schuyler circuit court; that when the cause came on to be heard at the next term of the latter court it was then and there held by that court that no jurisdiction had been acquired by that court, "because of the failure of the judge of the Knox circuit court to afford the parties an opportunity to choose a special judge, or to agree to choose an attorney of the bar, to be elected according to law, and as provided by law; and because of the silence of the record on those facts and subjects it failed to appear and show that the Schuyler circuit court had jurisdiction of the cause." Thereupon the judge of the court last mentioned directed the clerk of his court to certify the cause back to the court from whence it came, and this was done. When the Knox circuit court convened at its next term, the defendant in the cause moved the court by written motion to strike the same from the docket. Plaintiff thereupon (relator herein) called the attention of the judge of the Knox circuit court to the ruling of the Schuyler circuit court, and also moved the court by written motion to proceed and ascertain whether the parties could or would agree on a special judge, etc.; but the judge denied the motion of plaintiff, and then and there made an order striking the cause from the docket, and would not reinstate the same.

The respondent judge, waiving the issuance of the alternative writ, appeared, and filed answer, in which he admits most of the allegations of the petition, and then specifically states: "Admits that he granted a change of venue without asking the parties whether they could or would agree on a special judge to try the cause, or whether both parties would consent to the election of an attorney of the bar, present, at an election to be held by the clerk. Admits that the clerk of the Knox circuit court, as commanded, made out and sent to the office of the clerk of the circuit court of Schuyler county a complete transcript of the record, and the original papers in the cause, and the ten dollars filing fee required by law, and sent the same to said clerk of said Schuyler county. Admits that at the May term, 1898, of the Schuyler county circuit court, then and there held, that the circuit judge thereof held that he did not have jurisdiction of said cause; but for what cause said court did not have jurisdiction of said cause this respondent does not know nor can he state, nor does he know the reason or reasons said court assigned for it not having jurisdiction of said cause, and for it directing the clerk of said court to certify said cause back to the circuit court of Knox county. Admits that the defendant in said cause, at the June term of the Knox circuit court, 1898, filed a motion in said court before the Honorable Ed. R. McKee, judge, moving and asking him to strike said cause from the docket of said court. A copy of said motion so filed, and duly certified to by the clerk, is hereto attached, and marked `Exhibit D.' Admits that thereupon the plaintiff called this respondent's attention to the ruling of the circuit court of Schuyler county in this action, and claiming that the Knox circuit court should proceed, and ascertain whether the parties could or would agree on a special judge, or whether they would consent to the election of a lawyer by the members of the bar present to try the cause. Admits that he sustained defendant's motion, and struck said cause from the docket. Admits that during the said last-mentioned term of said Knox circuit court the plaintiff filed her motion to reinstate said cause on the docket of said court, and that this motion the court refused to sustain. Respondent, for further answer to said petition, denies each and every allegation therein contained not hereinbefore admitted to be true. Respondent, for further answer, states that at the time the said plaintiff in said suit as aforesaid filed her application for a change of venue as aforesaid, and at the time respondent, as such judge, passed upon and granted said change of venue, the parties to said suit did not thereupon agree upon a special judge, nor did both parties request the election of a special judge to try said cause."

1. Ever since Potter v. Adams' Ex'rs, 24 Mo. 161, it has been the settled doctrine of this court that the only way to remedy the improper awarding of a change of venue is by saving exceptions at the time the change is ordered, and in the court in which ordered. State v. Knight, 61 Mo. 373; State v. Dodson, 72 Mo. 283; Squires v. City of Chillicothe, 89 Mo. 226, 1 S. W. 23; Keen v. Schnedler, 92 Mo. 516, 2 S. W. 312; Stearns v. Railway Co., 94 Mo. 317, 7 S. W. 270. There is no pretense that exceptions were saved in the manner aforesaid when the change was ordered. In the case last cited it was sought by plaintiffs by bill in equity to have declared null and void a decree entered in favor of the railroad company and against Stearns for the recovery of a large sum of money and the foreclosure of his equity of redemption in some 8,000 acres of land. Stearns appeared, and filed an answer, and the plaintiff moved to strike out a part thereof. Thereafter, and at the August term, 1878, the Newton circuit court made an order changing the venue of the cause to the Greene county circuit court. This order, it is alleged, "was made without, and not founded upon, or pretended to be founded upon, any disability or disqualification of the judge of said Newton circuit court on account of his being interested in or related to either party, or by having been of counsel in said case, and without any application having been made therefor by either party to said cause, and without any consent of the parties in writing being filed in said Newton circuit court, as provided and required by law." The Greene circuit court, upon the filing of the transcript therein, took cognizance of the cause, and sustained the ...