State v. Neville

• Decision Date: 26 June 1900
• Citation: 157 Mo. 386,57 S.W. 1012
• Parties: STATE ex rel. MONETT MILL. CO. v. NEVILLE, Judge.
• Court: Missouri Supreme Court

57 S.W. 1012

157 Mo. 386

STATE ex rel. MONETT MILL. CO. v. NEVILLE, Judge.

Supreme Court of Missouri, Division No. 2.

June 26, 1900.

MANDAMUS — JUDICIAL PROCEEDINGS — SUPERINTENDENCE OF SUPREME COURT OVER CIRCUIT COURTS.

Where a change of venue has been duly taken, and a transcript of the record filed in the office of the clerk of the circuit court of the county to which the case has been transferred, so that the court has complete jurisdiction thereof, but the court dismisses the cause on its own motion for alleged want of jurisdiction, the supreme court will, by mandamus, require the circuit court to reinstate the case, and to proceed with the trial thereof, but it has not the power to control the judgment and discretion of the circuit court in any particular direction, under Const. art. 6, § 3, giving the supreme court "a general superintending control" over the circuit courts of the state.

Action by the state, on relation of the Monett Milling Company, against James T. Neville, as judge of the Greene county circuit court, for a writ of mandamus. Writ granted.

A. W. Lyon and Dabis & Steele, for relator. Geo. Hubbert, D. H. Kemp, and Cloud & Davis, for respondent.

BURGESS, J.

This is an original proceeding by mandamus begun in this court the purpose of which is to compel the respondent judge of the circuit court of Greene county to reinstate and to proceed with the trial of the cause of A. J. Webber against the Monett Milling Company, H. J. Webber, Submit M. Mills, Harry N. Mills, and Alberta B. Mills, which is now depending in said circuit court of Greene county on a change of venue from the circuit court of Barry county, where it was begun, but which said suit the respondent, before the institution of this proceeding, ordered and caused to be stricken from the docket, and declined to entertain jurisdiction thereof and to proceed therewith. On the 20th day of February, 1900, there was duly issued from this court an original writ of mandamus, directed to said Neville as judge of the circuit court of Greene county, commanding him to forthwith set aside the order striking said cause from the docket, and to proceed to hear said cause, or that he appear and show cause before division 2 of the supreme court on the 10th day of April, 1900, why he should not do so. On May 17, 1900, the respondent made return to said writ as follows: "(1) That on the first day of the May term of the above circuit court, on the 14th day of May, 1900, the respondent, as presiding judge thereof, ordered and caused the case of A. J. Webber, Plaintiff, vs. Monett Milling Company et al., defendants, to be duly docketed, with the purpose and intention to exercise the jurisdiction of the respondent's court over the said cause and its subject-matter, on the record and pleadings therein. (2) That, in pursuance of said purpose, respondent has received and filed in his said court second amended answer of the relator as defendant company, and amended motions of plaintiff and other defendants, and received the resignation of J. W. Vance as receiver, and appointed a new receiver in his stead, and directed care and lease of the mill property in question, by consent of the parties, for the coming year. (3) That the respondent and his said court stand ready to and will exercise such further power and jurisdiction, according to his best judgment, as the law seems to require, upon the issues presented, or to be presented, by the parties under their pleadings, and has proceeded to hear, and is ready to pass upon, a motion that will determine the cause. (4) That respondent does not understand that he is required to decide in any particular way, or to follow any special course, in passing upon the issues or disposing of the cause by his legal judgment; and prays specific directions, if any be intended, by this honorable court, still waiving, however, technical writ and formal service thereof. Counsel for the parties disagree as to the directions; defendants' claiming that the order is to proceed to hear the case on its merits, plaintiff's counsel contending otherwise. Respectfully submitted. James T. Neville, Judge of the Circuit Court of Greene Co."

The action by Webber against the Monett Milling Company and others was begun in the circuit court of Barry county on the 6th day of February, 1897. It was alleged in the petition that plaintiff was the owner and...