Moore v. Wabash Railroad

51 Mo. App. 504 | Mo. Ct. App. | 1892

Ellison, J.

Plaintiff sues for personal injuries alleged to have been received while attempting to board a train of defendant’s cars at the town of Keytesville, Chariton county. She obtained a verdict.

Defendant made application for a change of venne from Chariton county, alleging the prejudice of the inhabitants of that county, but making no objection to the judge of that circuit. The court nevertheless sent the case, against defendant’s exception, to Howard county which is in an adjoining circuit. This action of the court, and the contention that the verdict is not supported by the evidence, are the two points made against the judgment of the trial court.

Hnder the latter point* we have examined the testimony as presented by both parties, and have no difficulty in concluding that such evidence made out a case for the jury. This is so apparent from a consideration of the whole testimony that we do not deem it necessary to enter upon a discussion as to its relative force.

II. The change of venue was granted under the provisions of sections 2258 and 2262, Revised Statutes, 1889. Counsel have furnished us with an elaborate brief and argument against the power of the court in which the case originated to send the case out of that circuit when no complaint had been made against the judge of such circuit, the complaint being only against one county. We are relieved of the necessity of deciding the question, from the fact that the defendant appeared in the Howard county circuit court, and went to trial without objection in said court. That court had jurisdiction of the class of cases to which the one at bar belongs, and was capable of getting jurisdiction of the defendant by its voluntary appearance. No plea or other objection was made to the jurisdiction of the Howard circuit court. There was a voluntary submission to.such jurisdiction. It must, therefore, follow, under the cases of Fields v. Maloney, 78 Mo. 179, per Sherwood and Norton, JJ., and Stearnes v. Railroad, 94 Mo. 317, that the point made cannot avail defendant. The same statute provides that there can be but one change of venue allowed to a party; yet in State ex rel. v. Springer, 45 Mo. App. 252, where a party appeared and went to trial without objecting to the jurisdiction in a court to which the case had gone on a second change of venue, he waived the question.

III. As before stated, defendant objected in the Chariton circuit court to the case being sent to Howard county, and saved exceptions in that court to the change. ' But an objection for the want of jurisdiction, not of the subject-matter or of such class of cases, but which is personal in its nature, should be made to the court which is exercising the unwarranted power; ■otherwise there is a voluntary submission of the cause to a court clothed with authority to try such cases, and the result must be held to be binding on the party thus submitting.

We have been cited to a number of cases said to be contrary to the foregoing. An examination of them satisfies us that they are not.. They are chiefly cases where a party went to trial in a state court, after having his application for removal to the federal court overruled. The holding being that, after the application was duly made all authority and jurisdiction over such cause ceased, and its further action was coram non judice.

The result is that the judgment should be affirmed.

All concur.