State v. Stanton

• Decision Date: 07 June 1911
• Parties: STATE ex rel. MORRISON v. STANTON.
• Court: Missouri Supreme Court

138 S.W. 337

235 Mo. 222

STATE ex rel. MORRISON v. STANTON.

Supreme Court of Missouri.

June 7, 1911.

1. COURTS (§ 483) — TRANSFER OF CAUSES — STATUTORY PROVISIONS — CONSTRUCTION.

Where no change of venue is provided for in a particular proceeding, Rev. St. 1909, § 4082, providing for the transfer of cases from the county courts, should be liberally construed.

2. COURTS (§ 485) — CHANGE OF VENUE — DISQUALIFICATION OF JUDGES — STATUTORY PROVISIONS.

Since the circuit courts are authorized to incorporate drainage districts and to hear and determine all controversies arising in drainage proceedings, and since action of county courts in organizing drainage districts must be based upon evidence and reports, and not upon the personal knowledge of the judges of such courts, the county court's transfer of a proceeding to the circuit court on the ground of its own disqualification is proper, under Rev. St. 1909, § 4082, authorizing the certification of causes to the circuit court, as against the objection that county courts have special knowledge of the local needs in such cases; and hence it could not have been intended that proceedings to organize drainage districts might be transferred to the circuit court.

3. DRAINS (§ 14) — PROCEEDINGS TO ESTABLISH — JURISDICTION — APPEARANCE.

Where a petition in proceedings to establish a drainage district is filed in the county court, and the clerk gives notice of its pendency, as required by Rev. St. 1909, § 5581, reciting the point of beginning, the route, and terminus of the proposed ditch, which notice necessarily informed relator that such ditch would pass through his land, the fact that the county court was disqualified to hear the proceeding did not invalidate the notice, nor excuse relator from appearing in that court and formally making himself a party to said proceeding by filing his remonstrance, if any, as provided by Rev. St. 1909, § 5583.

4. DRAINS (§ 14) — PROCEEDINGS TO ESTABLISH — NOTICE — VALIDITY.

A notice, in a proceeding to establish a drainage district, given by the clerk of the county court, as required by Rev. St. 1909, § 5581, is valid, even if the clerk was an interested party.

5. JUDGES (§ 19) — OBJECTION TO AUTHORITY — SPECIAL CHARGE — STATUTORY PROVISIONS.

Under Rev. St. 1909, § 3961, which provides for the election of a judge by the parties where the regular judge is unable to sit in a cause, a party interested in a proceeding in the county court to establish a drainage district, who does not appear in the proceeding and file answer or remonstrances at the time they should be filed, cannot complain that he was not given an opportunity to agree with other parties upon a special judge to try the cause, before the regular judge of the circuit court had ordered the election of a special judge.

In Banc. Original proceeding in prohibition by State of Missouri, on the relation of Louis W. Morrison, against Camille J. Stanton. Preliminary writ of prohibition quashed, and absolute writ applied for denied.

This is an original action in this court to prohibit respondent, as special judge of the circuit court of Perry county, from exercising jurisdiction of and making further orders in a proceeding instituted by H. K. Spencer and others to organize drainage district No. 1 of Perry county, Mo.

The petition to organize the above-named drainage district was originally filed in the county court of Perry county, where all the overflowed lands intended to be included in the drainage district are situated. Said county court, upon the filing of the petition, appointed a civil engineer and three other persons as viewers to examine the line and route of the proposed ditches, and make a report to the court, as required by section 5580, R. S. 1909. The clerk of said county court also gave notice of the pendency of said petition and the time when same would be heard, as required by section 5581, R. S. 1909. Upon proof of publication of the aforesaid notice, and the coming in of the report of the viewers and engineer, the county court approved said report, and made an order organizing the district.

After the proceeding had been thus far advanced in the county court, that court discovered that one of its judges was an owner of land situated within the proposed drainage district, and that another judge of said court was a first cousin of one of the landowners of said drainage district. Whereupon said county court adjudged itself disqualified to act in the premises, and entered of record an order setting aside its former order organizing the district, and transferred the venue of the proceedings to the circuit court of Perry county, under the provisions of section 4082, R. S. 1909.

When the petition and bond of the parties seeking to organize the drainage district were filed in the circuit court, it was found that Hon. Charles A. Killian, judge of said court, was also an owner of land within said proposed drainage district; whereupon said judge made an order adjudging himself disqualified to hear the petition, and directed the clerk of said circuit court to hold an election to choose a special judge to hear and determine same, and all other matters connected with...