State v. Montgomery

• Decision Date: 15 February 1927
• Docket Number: (No. 26904.)
• Citation: 291 S.W. 472
• Parties: STATE ex rel. BURTON, v. MONTGOMERY, Circuit Judge, et al. (CHIARITON COUTY, intervener).
• Court: Missouri Supreme Court

291 S.W. 472

STATE ex rel. BURTON, v. MONTGOMERY, Circuit Judge, et al. (CHIARITON COUTY, intervener).

(No. 26904.)

Supreme Court of Missouri, in Banc.

February 15, 1927.

Original proceeding in prohibition by the State, at the relation of Oath Burton, against J. E. Montgomery, Judge of the Circuit Court within and for Chariton County, and another, in which Chariton County intervened. Proceeding dismissed.

Roy McKittrick, of Salisbury, and Grover, Tipton & Graves, of Kansas City, for relator. Jno. D. Taylor, of Keytesville, for intervener.

F. C. Sasse, of Brunswick, M. J. Lilly, of Moberly, and Fred & Gilbert Lamb, of Salisbury, amid curiae.

ATWOOD, J.

This is an original proceeding in which relator, charged by information in the circuit court of Chariton county with assault with intent to kill, asks us to prohibit respondents J. E. Montgomery and J. C. Collet, who are the circuit judge and the prosecuting attorney, respectively, of said county, from further entertaining and prosecuting said charge, on the ground that the alleged crime was not committed in Chariton county, and said circuit court of Chariton county is therefore without jurisdiction.

Relator's amended petition describes with particularity the land on which the alleged crime was committed with reference to course of the main channel of the Missouri river both before and after June, 1879, when the stream is alleged to have "perceptibly and abruptly changed its course" between the counties of Saline and Chariton ; alleges that the boundary between the counties of Chariton and Saline was fixed as the main channel of the Missouri river by the statute of 1865 ; and further alleges that, after said change, said land, although formerly south of the main channel of the Missouri river, was and is now north of said main channel, and not within the boundary of Chariton county. Said petition further alleges that. unless prohibited from so doing, said circuit court will proceed with the trial of said cause, and that relator has no adequate remedy at law because said prosecution in Chariton county will not bar a similar prosecution for the same alleged offense in Saline county. Attached to the petition is a certified copy of said information and of the Chariton county circuit court records showing the filing date of said information and the pendency thereof in said circuit court of Chariton county, at Keytesville, Mo.

Respondents waived issuance and service of process, and consented to the issuance of the preliminary rule, and on application to this court Chariton county was permitted to intervene. Application for permission to intervene was filed by a number of alleged landowners, which application was denied, but their attorneys were given permission to file briefs as amid curiae.

Respondents' return, after admitting the formal allegations of relator's petition, alleges that relator has an adequate remedy by means of appeal from any judgment or conviction that might be entered against him, and further alleges that he has not attacked or challenged, or by any means raised, the question of jurisdiction in the circuit court of Chariton county, Mo.; that relator's proceeding "is an attempt to decide matters purely of a civil nature, to wit, a dispute regarding the ownership of lands in the Missouri river bottoms, and to decide whether said lands are located in said Chariton county or in Saline county, Mo., and that such an issue cannot, and should not, be decided in a proceeding of this character."

Chariton county, intervener, filed return, making similar admissions, and pleading like defenses. Said return further specifically denies relator's allegations as to the location of the land on which the alleged offense was committed ; denies that said land was ever at any time south of the main channel of the Missouri river, or south of the boundary line between Saline and Chariton counties, or within the boundaries of Saline county ; and 0 denies that said land is or has ever been a part of the territorial sovereignty of Saline county. This return further avers that, at the time of the alleged offense, Ezra Williams was the owner of lots 4, 5, and 6 in the southeast quarter of section 34, township 54, range 19, Chariton county, Mo.; that said land is shown to be in Chariton county, Mo., and north of the Missouri river, by plat and survey made by A. F. Arrington, county surveyor of Chariton county, Mo., and on file in the office of the clerk of the county court of said Chariton county ; and that no such land is described, platted, or shown upon any map or plat made and filed by Charles H. Swift, county surveyor of Saline county, and filed in the office of the county clerk of Saline county ; that in the year 18— the boundary line between Chariton and Saline counties was fixed and defined by the Legislature "in the middle of the main channel" of the Missouri river ; that in the month of June, 1879, the Missouri river cut through south of the above-described Ezra Williams land, and, following this "avulsion" "gradually adjusted itself to a channel" south of the aforesaid land, and "that, notwithstanding the fact that the present center of the main channel of the Missouri river may not be located along the same line...