State v. Riley

• Decision Date: 30 March 1907
• Parties: STATE ex rel. KOCHTITZKY et al. v. RILEY et al.
• Court: Missouri Supreme Court

101 S.W. 567

203 Mo. 175

STATE ex rel. KOCHTITZKY et al. v. RILEY et al.

Supreme Court of Missouri.

March 30, 1907.

1. VENUE — CHANGE — CONSTITUTIONAL AND STATUTORY PROVISIONS.

A proceeding under Rev. St. 1899, art. 3, c. 122 [Ann. St. 1906, pp. 3875-3915], for the incorporation of a drainage district is a "civil suit" within the meaning of Rev. St. 1899, § 818 [Ann. St. 1906, p. 789], providing that a change of venue may be awarded in civil suits.

2. PROHIBITION — GROUNDS FOR RELIEF—ERRORS AND IRREGULARITIES.

Where the court acted within its jurisdiction in granting a change of venue, a writ of prohibition will not lie to correct its procedure however erroneous it may have been; these questions being properly for determination on appeal only.

In Banc.

Proceeding by the state, on the relation of Otto Kochtitzky and others, for a writ of prohibition, against Henry C. Riley as judge of the New Madrid circuit court and others. Writ denied.

In September, 1905, the relators and other landowners in the counties of Bollinger, Cape Girardeau, Dunklin, New Madrid, Pemiscot, Scott, and Stoddard, filed in the office of the clerk of the circuit court of New Madrid county "Articles of Association" for the formation and incorporation of a drainage district for the reclamation of swamp and overflowed lands located in those counties. The articles of association were drawn in conformity with article 3, c. 122, of the Revised Statutes of Missouri, 1899 [Ann. St. 1901, pp. 3875-3915], and the amendments thereto, approved April 8, 1905, relating to swamp and overflowed lands; and prayed for an order of said court incorporating the landed territory described in said articles into a drainage district to be known as the "Little River Drainage District." The articles of association and the petition so filed conform to all the requirements of the said statute and act before mentioned, and all the nonpetitioning landowners of the district either entered their appearance, were personally served, or duly notified by publication, as provided in the statute. It is alleged in the articles of association and the petition that New Madrid county had within its boundaries a greater portion of the land proposed to be embraced in said drainage district than has any of the other counties mentioned; and for that reason the suit was begun in that county. The summons was returnable the first day of the March term, 1905, of that court. On the 21st of March, 1906, respondents Louis and Mary H. G. Houck filed objections to the incorporation of the said drainage district, which were of great length. No further order was made by the court at that time, but by consent of the parties the hearing of the objections was continued until July 7, 1906.

On said last day respondents Louis and Mary Houck filed in said cause an application for a change of venue, which, omitting the caption, is as follows: "Now comes Louis Houck and Mary H. G. Houck, objectors and defendants in the above-entitled cause, and respectfully state that they cannot have a fair and impartial trial of said cause in the circuit court of New Madrid county, Missouri, for the reason that the opposite parties in said cause, to wit, the plaintiffs and petitioners therein for the incorporation and establishment of said drainage district, have an undue influence over the mind of the Hon. Henry C. Riley, the judge of said court, and for the further reason that said judge is biased and prejudiced against the objectors and defendants, and in favor of the said plaintiffs and petitioners in said cause; that information and knowledge of said bias and prejudice on the part of said judge, and of the said undue influence exercised over his mind, come to your petitioners for this change of venue after the last adjournment of this court, and after the filing of their objections herein against the incorporation and establishment of said drainage district, and that this application for a change of venue is made as soon as practicable after the filing of said objections. Wherefore, the defendants and objectors pray the court to change the venue of said cause and award the same to some other court, where the causes complained of do not exist." The application was signed by said Louis Houck, and duly sworn to on July 3, 1906.

The relators then filed a motion to strike from the files of the court the respondent's application for a change of venue, and assigned as reasons therefor, among others, the following: "(1) That the filing of said pretended application was improvident and without any statutory authority or right. (2) That the statute under which these proceedings were instituted for the incorporation of a drainage district makes no provision for a change of venue from the court where the proceedings are instituted, and the right to a change of venue is purely statutory, and does not exist, except in those instances where the statute authorizes it. (3) That the pretended application for a change of venue is insufficient in form, and does not comply with the statute, in that it does not state when the alleged information came to the knowledge of Louis Houck. (4) That the pretended application was filed without giving notice to the adverse party. (5) That the statute under which these proceedings were instituted, authorizing the incorporation of a drainage district, makes no provision for the granting of a change of venue, but, on the contrary, provides that the `objections' shall be heard before the court in a `summary manner, and without unnecessary delay,' and that this application for a change of venue was manifestly made for the purpose of delay." The relator's motion to strike out was at once taken up by the court; and, after it had been seen and heard, was by the court overruled, to which ruling and action of the court the relators duly excepted at the time. Thereupon the court took up the application of the respondents Louis and Mary H. G. Houck, and announced from the bench that said application would be sustained, and the venue in said proceeding (the formation and incorporation of said drainage district), would be changed from New Madrid county to some other county. To this action of the circuit court the relators objected and excepted at the time. Thereupon the relators requested said circuit court to withhold its order and judgment in granting a change of venue and sending said proceedings for the incorporation of a drainage district to some other county until relators could be heard in this court, and ascertain whether or not the respondents Louis and Mary H. G. Houck were entitled to a change of venue under the statute authorizing a circuit court to incorporate a drainage district. This latter request was, by the circuit court, granted. Thereupon relators instituted this proceeding in this court, praying for a writ of prohibition, prohibiting the Hon. Henry C. Riley, judge of the New Madrid circuit court, from granting said change of venue, and prohibiting Louis and Mary Houck from further prosecuting their said application for a change. This court issued a provisional writ, requiring respondents to show cause why a permanent writ should not issue.

The answer and returns of the respondents substantially admit the facts before stated, and insist: First. That the action of said judge was within the limits of his lawful jurisdiction, and that he had a right to take up and dispose of said application for a change of venue in the same manner, and in the same way, as though the proceedings for the incorporation and formation of a drainage district was a "civil suit" within the meaning of section 818, Rev. St. 1899 [Ann. St. 1906, p. 789]. Second. That if the respondent judge committed error in holding that a change of venue would lie in a proceeding relating to the formation of a drainage district, it was reviewable on appeal, and that prohibition for that reason would not lie. Respondents Louis and Mary Houck, in their separate return, set up many other reasons why they should be discharged, which go to the merits of the case, and have no bearing upon the issues presented here; and, for that reason, they will not be further noticed.

Oliver & Oliver, for relators. John A. Hope, for respondents.

WOODSON, J. (after stating the facts).

1. There are but two points presented in the case for the court's determination, and they are: Whether or not the circuit court of New Madrid county was exceeding its lawful jurisdiction in holding that the venue in a proceeding for the incorporation of a drainage district could be changed from that county to some other county; and whether or not this court in this character of proceedings can review the assigned errors of the trial court. We will consider these questions in the order mentioned.

If this proceeding is a civil suit, within the meaning of section 818 of the Revised Statutes of Missouri, 1899, regarding changes of venue in civil suits, then the circuit court of New Madrid county was not exceeding its lawful jurisdiction when it announced its purpose to grant the change of venue to some other county in the state, and in that case the provisional writ should be quashed; but, if, upon the other hand, such a proceeding as this is not such a suit within the meaning of said section, then said court was at that time transcending its jurisdiction, and the provisional writ should be made permanent. The respondents contend for the affirmative of this proposition, while the relators maintain the negative thereof. The issue thus joined requires us, first, to determine what is a "civil suit" within the meaning of the statute.

Mr. Webster says that the word "civil" means: "5. Relating to rights and remedies sought by action or suit. Civil remedy (Law): That given to a person injured by action, as opposed to a criminal prosecution. Civil suit: A suit for a private claim or injury." Bouvier defines the word "civil" in these words: "In contradistinction to...