Smith v. St. Louis & San Francisco Railway Co.

31 Mo. App. 135 | Mo. Ct. App. | 1888

Philips, P. J.

The only question presented by this-appeal for our determination is, whether or not the circuit court erred in denying a change of venue to the defendant. The application is as follows: “The defendant above named prays the court to grant it a change of venue in the above entitled cause, and for grounds of such change said defendant states that the inhabitants of said county of Jasper are prejudiced against the defendant herein.” The affidavit is as follows :

“ W. H. Phelps being duly sworn, on his oath states-that he is the attorney for the above named defendant and has the sole and entire management of said cause for and on behalf of said defendant corporation, and that the facts stated in the above petition are true and that he has just cause to believe and does believe that the said defendant cannot have a fair trial in said Jasper county, on account-of the cause alleged

“W. H. Phelps.”

The court refused to .grant the application. On trial, judgment went for plaintiff, and defendant has-appealed.

The appellant asserts in its brief here that the court assigned as a reason for denying the application that the statute authorizing changes of venue in the circuit court applies only to cases originating in the circuit court, and not to the instance of cases coming by appeal from justices’ courts. There is nothing in the record to indicate1 the grounds of the action of the court; and plaintiff contends it was based on the insufficiency of the notice and application. We can only consider the case as it appears of record.

Prior to the Bevised Statutes of 1879 the provision1 of law applicable to such cases read as follows: “ Any party in such cause may present to the court, or the1 judge thereof, in vacation, a petition, setting forth the1 cause of his application for a change of venue, and shall annex thereto an affidavit to the truth of the petition, and-allege that he has just cause to believe that he cannot have a fair trial on account of the cause alleged.” Glen. (Stat., 1865, p. 634, sec. 3. In the revision of 1879 (sec. 3732) said section of the statute of 1865 was amended by inserting after the words, “a petition setting forth the cause of the application for a change of venue”, the following, “and when he obtained his information and knowledge of the existence thereof.” It will be observed that neither the petition nor the affidavit in question contain the words last quoted. It is not necessary to inquire into the policy or motive of the legislature in interpolating these words into the statute. It is sufficient for the courts to know that the statute is so written; and it presents a case where the statute must stand for a reason. Young v. Glasscock, 79 Mo. 578. This is the only section of the statute, aside from section 3731 (which has no application to the facts of this case), which prescribes what the petition shall contain and recite. The right to a change of venue is purely statutory, and to entitle a party to such change he must comply with all the substantial requirements of the enabling act. Huthsing v. Moss, 36 Mo. 107-8. This radical defect in the petition was sufficient to justify the action pf the court in refusing the application. It is, therefore, unnecessary to search out or consider other grounds of .objection.

‘ It follows that the judgment is affirmed.

All concur.