State v. Pence

• Decision Date: 06 April 1922
• Docket Number: No. 23325.,23325.
• Citation: 240 S.W. 443
• Parties: STATE ex rel. PAYNE v. PENCE, Circuit Judge.
• Court: Missouri Supreme Court

240 S.W. 443

STATE ex rel. PAYNE v. PENCE, Circuit Judge.

No. 23325.

Supreme Court of Missouri, in Banc.

April 6, 1922.

Motion for Rehearing Overruled April 29, 1922.

Application of the State of Missouri, at the relation of Jennie Payne, for original writ of prohibition to prohibit Hon. Charles R. Pence, Judge of Division No. 3 of the Jackson County Circuit Court, from trying the case of Jennie Payne against John A. Moore and others. Rule in prohibition discharged.

William Buchholz, I. B. Kimbrell, and Martin J. O'Donnell, all of Kansas City, for relator.

John H. Lucas and Rozzelle Vineyard & Boys, all of Kansas City, for respondent.

GRAVES, J.

Original action in prohibition. It is sought to prohibit Hon. Charles R. Pence, judge of division No. 3 of the Jackson county circuit court, from trying the case of Jennie Payne, Plaintiff, v. John A. Moore at al., defendants. This cause was on November 15, 1921, and for some time prior thereto, pending in division No. 8 of the circuit court of Jackson county over which Hon. Thad B Landon was then presiding. Whilst said cause was so pending, the plaintiff, Jennie Payne, filed an application for a change of venue, and deposited therewith a fee of 810. In her application she charged (1) that the defendants had an undue influence over the minds of all the judges of the said circuit court (under the present law, 10 in number); (2) that such defendants had an undue influence over the inhabitants of Jackson county; (3) that the inhabitants of Jackson county were prejudiced against the plaintiff. A hearing was had upon this application, as appears from the judgment of Judge Landon, which judgment thus concludes:

"The court doth thereupon consider the said petition and doth find that said petition is in due form, and the court, after hearing the evidence, grants plaintiff a change of venue as to division 8 of the circuit court of Jackson county and denies plaintiff a change of venue as to the other divisions of the circuit court of Jackson county, Mo., and also after hearing the evidence denies plaintiff a change of venue as to the prejudice of the inhabitants of Jackson county, Mo., and the court further orders that this cause be sent to division 3 of the circuit court of Jackson county, Mo., for trial, to which action and ruling of the court plaintiff excepts."

Relator here contends that she is entitled to a change of venue from the county and from all the judges by force of the Act of April 11, 1921 (Laws of 1921, pp. 203, 204), and respondent claims that such law has no application. Learned counsel for respondent says:

"This controversy may be reduced to a single question: Is the act of the Legislature, Session 1921, pp. 203, 204, applicable to Jackson county? It is so affirmed by relator, and denied by respondent."

We take it that this is the real question in the case. This and pertinent side issues will be noted in the course of the opinion.

I. There is no contention that the plaintiff is entitled to a change of venue other than the one she got, unless the Act of April 11, 1921 (Laws of 1921, pp. 203, 204), has changed the status of the change of venue law heretofore applicable to the Sixteenth judicial circuit (Jackson county, including Kansas City) of Missouri.

The present applicable law to the circuit court of Jackson county had its origin in the act of 1905 (Laws of 1905, pp. 119 to 121), in which law there was a change of venue statute peculiar to the act. Section 9 of the act reads (quote page 121, Acts of 1905):

"No change of venue shall be allowed by said circuit court sitting at such city to the circuit court of any other county in this state for the cause that the judge sitting for the trial of said suit is prejudiced, nor for the cause that the opposite party has an undue influence over the mind of said judge, but if any application is made alleging that either or both of said causes exist as against the judge before whom said suit is pending for trial, then suit shall be at once transferred to a division held by some other judge of said circuit court, and shall in said division to which said suit is transferred be set down forthwith for trial and be tried as speedily as possible. Only one such application shall be made by the same party in the same case, and shall be made as to only one of the judges of said court."

The title of this act reads:

"An act in relation to the organization of and procedure in circuit courts in cities where by law terms of such court are or may be required to be held, where such cities now have or hereafter may have, not less than one hundred and fifty thousand inhabitants nor more than four hundred thousand inhabitants."

In 1907 (Laws of 1907, pp. 201-203) two additional judges were added, but existing governing law, not inconsistent with the Act of 1907, was particularly preserved. So, too, in 1913 (Laws of 1913, p. 211) other divisions were created and additional judges were added, but prior laws specifically preserved as in 1907.

These acts will be found in R. S. 1910, as sections 2449 to 2459, inclusive. Section 2457 preserves the change of venue law found in section 9 of the Act of 1905, quoted supra. All these sections are found in article 3 of chapter 21, R. S. 1919. The location of section 2457 (the change of venue law applicable to Jackson county) becomes material.

The Act of 1921 (Laws of 1921, pp. 203, 204) is thus entitled:

"An act to repeal section 1361 of article XI of chapter 12, of the Revised Statutes of Missouri 1919, entitled `Change of Venue,' and to enact a new section in lieu thereof, to be known as section...