Woodrow v. Younger

• Decision Date: 31 October 1875
• Citation: Woodrow v. Younger, 61 Mo. 395 (Mo. 1875)
• Parties: E. WOODROW, Respondent, v. W. H. H. YOUNGER, Appellant.
• Court: Missouri Supreme Court

61 Mo. 395

E. WOODROW, Respondent,

v.W. H. H. YOUNGER, Appellant.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Greene County Circuit Court.

Jas. F. Hardin, with J. E. Ellis, for Appellant.

The right to change of venue and its requirements are purely statutory, and defendant has complied in all respects with them.(SeeWagn. Stat., 1356, §§ 1, 2 and 3.)

This case is not that of ex parte Cox. (10 Mo., 743.)In case of an ordinary verdict, the evidence is in the breast of the court, and on change of venue, it must all be re-heard.But that taken before the referee is in writing, and alike open and accessible in any court, and may be passed on as easily by one court as by another.

This reference was not by consent, but involved the examination of a long account.The statute(Wagn. Stat., 1041, § 18) makes such reference for the information of the court only.And this does not preclude either party from other rights conferred by the statute.

Bray & Cravens, with F. S. Hefferman, for Respondent.

The application for change of venue, after finding and report of referee, was properly overruled.SeeEx parte Cox, (10 Mo., 742) in which case the learned judge says: “There can be no doubt, however, that it never was contemplated that the progress of a suit could be interrupted at any period by such applications.”

NAPTON, Judge, delivered the opinion of the court.

This was a suit against the curator of an estate, finally disposed of in the circuit court of Greene county.In September, 1870, the circuit court of Greene county, referred the matter to a referee, who at the May term, 1871, reported the evidence and his conclusion on it.After this report was filed and exceptions to it were made, but before the court gave any opinion on it, the defendant filed his application for a change of venue, on the ground that the judge was prejudiced, and was under the influence of the opposite party.

The application was denied, and its refusal constitutes the only point in the case.In Ex parte Cox, (10 Mo., 742)this court issued a mandamus upon a court, which allowed a change of venue after verdict, and it is conceded that that decision must control the present case, unless there is a material distinction between the verdict of a jury and the report of a referee, so far as the right to a change of venue is concerned; but in Franz vs. Dietrick, (49 Mo., 95) it was held that the report of a referee, in stating an account, is equivalent to a special verdict.It is...