Exparte Cox

10 Mo. 742 | Mo. | 1847

Napton, J.,

delivered the opinion of the Court.

It appears from the petition of Adeline Cox, and the record accompanying it, that a suit was instituted by Jacob Cox against the petitioner, who was his wife, for a divorce — that bill and answer were filed — issues made up and tried by a jury — and a verdict found. At this stage of the proceedings, Jacob Cox applied for a change of venue, on the ground that the Judge of the Platte Circuit Court was prejudiced against him. The change was ordered, and this application is to compel the said Circuit Court to proceed and determine the cause.

Our statute which authorizes a change of venue in civil cases, does not in terms declare at what period of the cause such orders may be made. There can b'e no doubt, however, that it never was contemplated that the progress of a suit could be interrupted at any period by such applications. The law must be construed with reference to the practice of other courts and our courts, so as not to produce inconvenience and absurdity. We need not, in this case, undertake to fix any particular period, beyond which such applications should be disregarded, but we do not hesitate to say that, after the issues have been made up and tried, it is too late for the complainant to come in and swear that the Judge is prejudiced. No special facts are stated to account for this untimely application. If any prejudice existed on the part of the Judge, it must have existed before the suit was tried. Is a party to lie by until near the close of a trial, and when the developements elicited in its progress have induced a belief that the result will be unfavorable, to be then permitted to abandon the tribunal he has himself selected, and try the chances of some other jurisdiction ? Such a course would tend to endless litigation. We will not presume that such a proceeding was designed to be tolerated, unless the Legislature shall expressly say so. We think the Circuit Court of Platte county erred in granting the application of Jacob Cox, and shall therefore award the mandamus asked for.