227 Mo. 252 | Mo. | 1910
Tbis was a proceeding in tbe circuit court of Holt county to incorporate tbe above named drainage district under sections 8251 and following, Revised Statutes 1899. Tbe appellants with others being landowners in tbe district, filed objections to tbe incorporation, tbe proceeding resulted in a decree of incorporation and Richardson and others have brought tbe cause here by appeal. Appellants ask a reversal of the judgment on one point only, that is, tbe action of tbe court on their application for a change of venue. At tbe return term of tbe court appellants filed their application for a change of venue under section 818, Revised Statutes 1899', based on their allegation that tbe petitioners for tbe incorporation bad an undue influence over tbe mind' of tbe judge of that court. After filing that application and on tbe same day they filed their objections to tbe proceeding. Afterwards, during tbe same term and before any other action by tbe court in tbe matter, tbe court made tbe following order which was duly entered of record:
“Now, here at tbis time, William C. Ellison, judge of this court, for having an opinion as to tbe merits of tbe case, disqualifies himself from acting thereon, and tbe application for change of venue is sustained, ánd it appearing to tbe court that tbe petitioners andl tbe objectors are unable to agree upon any member of tbe bar to sit in tbe trial of said cause or to the election of a special judge, it is ordered that said cause be set down for trial on Tuesday, September 22, 1908, and it is further ordered that Francis H.
On the day named, 22d September, 1908, Judge Trimble, in compliance with the order, appeared in court, ascended the ‘bench and called the cause for trial; thereupon appellants filed and presented a plea to the jurisdiction of the court as then constituted, that is, with Judge Trimble presiding. The plea starts out with: “Now come the objectors in the above entitled cause and now plead to the jurisdiction and authority of Judge Trimble now sitting in the hearing of said cause and aver that the said judge has no right to hear, try and determine the same or in any manner act in the premises,” etc. It then goes on to recite the filing of the application for a change of venue and states that they deposited with the clerk the $10 required by the statute and then recites the order of the court which is above quoted, states that the court had no authority to call in another judge to try the cause in that court, but had only authority to change the venue to another county, and concludes with the statement that the order conferred no jurisdiction on Judge Trimble, but that the cause still remained in the jurisdiction of the court with Judge Ellison to preside. On the hearing of that plea appellants offered in evidence their application for a change of venue and the order of court above mentioned; the court overruled the plea and appellants saved their exception. Then the court went on to try the cause with the result already above stated.
When Judge Ellison made the order calling in Judge Trimble to try the cause, instead of ordering a change of venue to another county as appellants contend he should have done, appellants did not ex
Appellants in their brief say that since the action of Judge Ellison calling Judge Trimble to preside appears on the face of the record proper it is reviewable on appeal, although no exception was taken. To sustain this position counsel refer to Leslie v. Chase, 200 Mo. 363, where at pages 374-5 the court said:
“If a circuit court makes an order for a change of venue.in a cause pending before it, when, under the circumstances, there was no legal ground for the order, it is error; but unless the record proper shows on its face that the order was .without lawful authority, the party objecting to it can bring the error to the attention of the appellate court only by a bill of exceptions filed in the court where the order was made. If, however, the record proper in the court where the order was made shows on its face that the court had no authority to make it, then the order gives the court to which the cause is sent no jurisdiction to try it, and if that court should thereafter acquire any jurisdiction of the cause it would be, not by virtue of that order, but on the ground that it was in itself a court having general jurisdiction over such causes and that the parties to the suit had without objection submitted their cause to its jurisdiction.”
In that case there was an application for a change of venue on the ground of the alleged prejudice of the judge, the court record showed that the application coming on to be heard was by the court sustained, and that thereupon the parties agreed to call in a certain judge from an adjoining circuit to try the
In Endaley v. Railroad, 186 Mo. 399, and Guy v. Railroad, 197 Mo. 174, exceptions were timely preserved in term bills of exception. In State ex rel. v. Evans, 184 Mo. 632, l. c. 642, the court said: “The room for the exercise of discretion in the trial judge on an application for a change of venue is sometimes very narrow. If the application is in due form and in due time, his duty to grant the change in a certain class of cases, is imperative, but still it is for him, at least, to say that the application is or is not in due form or in due time, and although he may err in his judgment yet his jurisdiction is not thereby ended.”
The application for a change of venue does not affect the jurisdiction of the court, it is only when the court makes an order transferring the cause to another court that the original court loses its jurisdiction. [In re Whitson’s Estate, 89 Mo. 58.] In Wolff v. Ward, 104 Mo. 127, an application for a change of venue had been denied, and the court record showed that the party excepted to the action of the court, but the bill of exceptions did not show it, and the court said: ‘ ‘ These applications do not constitute a ' part of the record proper. [Stearns v. Railroad, 94 Mo. 317, and cases cited.] And this court will not review the action of the court thereon unless exceptions were saved and the matter brought to the attention of the court by motion for new trial.” In the case at bar no exception was taken to the action of Judge Ellison, and the only objection made to the action of Judge Trimble was that the court, with him presiding, had no jurisdiction. Appellants failed to
We find no. error in the case as presented; the» judgment is therefore affirmed.