47 Mo. 326 | Mo. | 1871
delivered the opinion of the court.
It appears that the plaintiff had recovered judgment against defendants in the Gasconade Circuit Court, upon which judgment execution was issued, and the defendants presented their motion to quash the execution, upon the ground that the judgment was void, as having been rendered without jurisdiction over the persons of defendants and in thoir absence. The plaintiff was the judge of said Circuit Court, and when the motion came up for hearing he called upon Hon. T. M. Rice, judge of the First Circuit, to preside and hear the motion, to which the defendants objected, upon the ground that the judge of the court was present in good health, and none of the reasons existed that would authorize him to call upon the judge of the First Circuit to pre
Defendants sued out- a writ of error to the action of the court upon this motion, and the plaintiff objects to its consideration for the reason that there was no final judgment. It is difficult to understand what is meant by this objection. Ordinarily, a motion, pending the trial of a cause, is a part of the proceedings, and its disposition will not be reviewed until final judgment in the pending cause. But in this case no further judgment is to be had; the principal cause had been already disposed of; the overruling of the motion is a final and.complete disposition of its subject-matter, and if the objection has any application it must be to the allowance of a writ to the action of the court upon such a motion. But that question is not an open one, this court having uniformly sustained such writs. (Bain v. Chrisman, 27 Mo. 293; Parker v. Waugh, 34 Mo. 340; Bruce v. Vogel, 38 Mo. 100; Parker v. Hann. & St. Jo. R.R. Co., 44 Mo. 415.)
The question then arises whether the judge of the Gasconade Circuit Court, being himself interested in the cause, had a right to call upon a judge of a neighboring circuit, who was present, to sit and determine said cause. If he had such right he must have obtained it from the constitution or the statute, for it will not be pretended that considerations of convenience, or of fairness merely, will control the jurisdiction of a oourt or point out the judge who is entitled to hold it. Reliance, doubtless, was had
It'was the duty of the court, when the motion was presented, “ without any application from either party,” to award a change of venue, and especially when those who presented it insisted upon the change. (Wagn. Stat., ch. 158, §§ 1-5, pp. 1355-6.) It was a legal right of which the defendants could not be thus deprived, and the order of the Circuit Court upon tie motion should have been reversed by the District Court. Its judgment, dismissing the writ of error, is reversed, and all the proceedings of the Circuit Court after the presentation of the motion are set aside and the cause remanded, with directions to grant the change of venue according to the statute.