The State At Relation of Bixman v. Denton

• Citation: 107 S.W. 446,128 Mo.App. 304
• Parties: THE STATE OF MISSOURI at the relation of JOHN N. BIXMAN, Relator, v. HON. CHARLES A. DENTON, Judge, etc., Respondent
• Decision Date: 27 January 1908
• Court: Court of Appeals of Kansas

107 S.W. 446

128 Mo.App. 304

THE STATE OF MISSOURI at the relation of JOHN N. BIXMAN, Relator, v. HON. CHARLES A. DENTON, Judge, etc., Respondent

Court of Appeals of Missouri, Kansas City

January 27, 1908

Original Proceeding by Prohibition.

WRIT DENIED.

Dickinson & Son, J. D. Lindsay, C. A. Calvird and Parks & Son for relator.

(1) A certiorari proceeding is a civil suit within the meaning of section 818, Revised Statutes 1899. Woods v Eckerle, 95 Mo.App. 384; Weston v. Charleston, 2 Peters 464; Kohl v. United States, 91 U.S. 367; Upshur Co. v. Rich, 135 U.S. 467; McCullough v Large, 20 Feb. 309; Hendrix v. Kellogg, 32 Ga 435, 437. (2) The word "suit," comprehends not only actions at law, but every judicial proceeding for the enforcement of a right. Bouvier's Law Dictionary; Weston v. Charleston, 2 Peters 474; Ex parte Long, 108 U.S. 556; Haines v. Jamison, 39 U.S. 540; Roodhouse v. Briggs, 194 Ill. 435; McMann v. People, 50 Ill. 507; McCullough v. Large, 20 F. 309; State ex rel. v. Riley, 203 Mo. 175, 101 S.W. 567; R. S. 1899, sec. 1554. (3) The right to review the action of the circuit court in certiorari proceedings by appeal has never been questioned in this State and the action of the trial court has been reviewed by appeal, without question, in the following cases: State ex rel. v. Barker, 170 Mo. 383; State ex rel. v. Barker, 170 Mo. 394; State ex rel. v. Fraker, 168 Mo. 445; Ward v. Board of Equalization, 135 Mo. 309; State ex rel. v. Springer, 134 Mo. 212; State ex rel v. Kansas City, 89 Mo. 34; State ex rel. v. Police Com., 88 Mo. 144; State ex rel. v. Court, 80 Mo. 500; State ex rel. v. Powers, 68 Mo. 320; State ex rel. v. Court, 67 Mo. 522; Britton v. Stebers, 62 Mo. 370; State ex rel. v. Dowling, 50 Mo. 134; Rogers v. Court, 60 Mo. 101; State ex rel. v. Court, 47 Mo. 594; Hill v. Young, 3 Mo. 337; State ex rel. v. Court, 100 Mo.App. 479; State ex rel. v. Jackson, 93 Mo.App. 516; State ex rel. v. Moore, 84 Mo.App. 11; State ex rel. McDavid, 84 Mo.App. 47; State ex rel. v. Williams, 70 Mo.App. 238; State ex rel. v. Walbridge, 62 Mo.App. 162; State ex rel. v. Schneider, 47 Mo.App. 669; Moore v. Bailey, 8 Mo.App. 156. The right of appeal from the final judgment of the circuit court exists in proceedings in certiorari. State ex rel. v. Springer, 134 Mo. 212; Hill v. Young, 3 Mo. 337; Board of Supervisors v. Magoon, 109 Ill. 142; Hyslop v. Finch, 99 Ill. 171; School Trustees v. School Directors, 88 Ill. 100; Morley v. Elkins, 37 Cal. 456; Swann v. Cumberland, 8 Gill (Md.) 150; Welch v. Wetzel Co., 26 West Va. 63; Edgerton v. Green Cove Springs, 18 Fla. 528; Dean v. Wilcoxen, 18 Fla. 531; Lowndes Co. Coms. v. Barrie, 34 Ala. 461; Robens v. Videto, 22 Mich. 240; Meade v. Steame Co., 43 Minn. 312; Johnson v. Hanna, 1 Wright (Ohio) 138; Lawson v. Scott, 1 Yerg. 92; 2 Spelling on Extr. Rem. sec. 2056. (4) Where the inferior court has jurisdiction of the certiorari proceedings, its action in such proceedings cannot be reviewed by a writ of certiorari from the higher court. Such action can be reviewed only on appeal or writ of error. Certiorari to certiorari does not exist where the inferior court has jurisdiction of such certiorari proceedings. State ex rel. v. Smith, 101 Mo. 174; State ex rel. v. Smith, 173 Mo. 398; State ex rel. v. Barker, 170 Mo. 390; Edgerton v. Greene Cove Springs, 18 Fla. 523; R. S. 1899, secs. 806, 1554; Snoddy v. Pettis County, 45 Mo. 361; State v. Vaughan, 83 Mo.App. 457; Kreyling v. O'Reilly, 95 Mo.App. 561; Railroad v. Powell, 104 Mo.App. 362. (5) The right to a change of venue exists in any civil suit. R. S. 1899, secs. 818, 819; State ex rel. v. Riley, 203 Mo. 175, 101 S.W. 567. It may be taken by any party in interest in certiorari proceedings. State ex rel. v. Court, 100 Mo.App. 479. (6) The writ of certiorari except in the cases specifically, provided by statute, is in the nature of a writ of error with this difference that it brings up only the record of the inferior tribunal for inspection, and the trial upon it, is a trial of questions jurisdictional in their nature and not a trial de novo except of such matters affecting the jurisdiction of the court. State v. Schneider, 47 Mo.App. 675; Adams v. Block, 63 N.J.L. 508, 44 A. 208; McAloon v. License Com., 22 R. I. 191, 46 A. 191; Ewing v. Hollister, 7 Ohio 140; Bridge Co. v. Magoon, 8 Me. 292; Levant v. Co. Com'rs, 67 Me. 429. (7) Certiorari is in the nature of an appeal from the judgment and judicial determination of inferior tribunals and officers acting under statutory authority, or when the proceeding is not according to the common law. People v. Walter, 68 N.Y. 403; Stone v. New York, 25 Wend. 157; People v. Walter, 2 Hill. 9; Lande v. Noble, 20 Johns. 80; Ex parte City of Albany, 23 Wend. 277; Hamilton v. Spiers, 2 Utah 225. (8) Persons who are parties to the record sought to be annulled, or who are interested in maintaining the regularity of the proceedings of which a review is sought, should be made parties defendant. 4 Encl. Pl. and Pr., 183 and authorities cited; 2 Spelling on Extr. Rem., 1977; 6 Cyc., 775; Com. v. Peters, 3 Mass. 229; Cornell v. Chandler, 11 Tex. 249. (9) While the officer or tribunal having custody of the record is often made a party defendant, it is not to be understood that he or it is always or even generally a necessary party and where certiorari is prosecuted in aid of an ejectment suit, the present owner should be a party to it, otherwise he cannot be bound by the proceeding, and certiorari in aid of habeas corpus should be directed to the officer having the prisoner in custody. 2 Spelling on Extr. Rem., 1984, 1988; Black v. Town of Brinkley, 15 S.W. 1030; Sammerman v. Borough of Wildwood (N.J.), 40 A. 1132; Com. v. Borough of Wildwood, 38 A. 22, 60 N.J.L. 365; State v. Washoe Co. Comrs., 23 Nev. 247, 45 P. 529; Griscom v. Gilmore, 15 N.J.L. (3 J. S. Green) 475; Connell v. Chandler, 11 Tex. 249; McFall v. Dover, 57 A. (N.J.) 136. (10) The fact that an appeal will lie in the proceeding sought to be restrained is not ground for denying the writ of prohibition, where the remedy by appeal is inadequate or not sufficiently speedy. State ex rel. v. Allen, 45 Mo.App. 557; State ex rel. v. Fort, 107 Mo.App. 328; State ex rel. v. Guinnotte, 156 Mo. 513; State ex rel. v. Eby, 170 Mo. 497. (11) An appeal from a judgment of the circuit court annulling the license and the proceedings under which it was issued, does not operate as a supersedeas. State ex rel. v. Barnett, 110 Mo.App. 557, and authorities cited.

John A. Gilbreath for respondent.

(1) A county court or the justices thereof, where the circuit court issues a writ of certiorari, to the county court are not entitled, under the law, to a change of venue. State ex rel. v. County Court, 100 Mo.App. 480; Squires v. Chillicothe, 89 Mo. 232; Levin v. Dills, 17 Mo. 64; Huthsing v. Maus, 36 Mo. 101; Norvell v. Porter, 62 Mo. 312; Ewing v. Brooks, 69 Mo. 49; Fields v. Maloney, 78 Mo. 175. (2) The right to a change of venue is purely statutory and exists only in those instances where statute confers such right. Cole v. Cole, 89 Mo.App. 228; Cottrell v. Wofford, 119 Mo. 408; State ex rel. v. Woodson, 86 Mo.App. 253; State v. Headrick, 149 Mo. 403. (3) The term "civil suit" only applies to any civil action within the meaning of the code of practice even in its broadest sense, between private parties for private rights. State ex rel. v. Riley, 203 Mo. 175; Walker v. Ellis, 146 Mo. 327, 331, 332; Morris v. Lane, 44 Mo.App. 1. (4) We have no statute in this State regulating the practice on proceedings by certiorari, and are to look to the common law for a guide in such cases. Railroad v. State Board, 64 Mo. 308, 117 Mass. 564, 28 Wis. 271, 36 Iowa 15; State ex rel. v. Bennett, 102 Mo.App. 248; State v. Schneider, 47 Mo.App. 675; State ex rel. v. Patton, 108 Mo. 31; State ex rel. v. Dowling, 50 Mo. 134; State ex rel. v. Williams, 70 Mo.App. 242; State ex rel. v. Powers, 68 Mo. 323. (5) Writ of prohibition is not writ of right. It is a writ, the award of which is to be governed by the discretion of the court applied to the facts presented by the individual case. State ex rel. v. Levens, 32 Mo.App. 520, and cases cited; State ex rel. v. Seay, 23 Mo.App. 629, and cases cited; Davison v. Hough, 165 Mo. l. c. 575; State ex rel. v. Riley, 203 Mo. 175. (6) Motion for judgment on the return in proceedings on an application for a writ of prohibition must be taken to admit all facts well pleaded in the return. State ex rel. v. Elkin, 130 Mo. 90; Wand v. Ryan, 166 Mo. 646. (7) The county justices can appeal in certiorari, and the following cases are taken to the higher courts in certiorari on appeal. State ex rel. v. Campbell, 37 Mo.App. 338; State ex rel. v. County Court, 47 Mo.App. 647; State ex rel. v. Moore, 84 Mo.App. 11. (8) An application for a change of venue by "a nominal party" and not a party known to the writ of certiorari but a mere volunteer--an interloper--a mere friend to the county court in the proceeding is not entitled to a change. Buchan v. Brodwell, 88 Mo. 34.

OPINION

BROADDUS, P. J.

--As there is no controversy about the status of the case we adopt the statement, so far as is pertinent, as we find it in the record made by relator.

"The relator, John N. Bixman, is a dramshop keeper in the city of Clinton, under a license issued to him in July, 1907, and expiring in January, 1908, under order and proceeding of the county court of Henry county, Missouri, granting him such license at its July term, 1907. The respondent is the judge of the Twenty-ninth Judicial Circuit, and as such judge of the circuit court of Henry county, Missouri.

"On the 21st day of June, 1907, the relator, Bixman, who was then and for many years had been a dramshop keeper in the city of Clinton,...