State ex rel. Bixman v. Denton

128 Mo. App. 304 | Mo. Ct. App. | 1908

BROADDUS, P. J.

As there is no controversy about the status of the case we adopt the statement, so far as is pertinent, as we find it in the record made by relator.

“The relator, John N. Bixman, is a dramshop keeper in the city of Clinton, under a license issued to him in July, 1907, and expiring in January, 1908, under order and proceeding of the county court of Henry county, Missouri, granting him such license at its July term, 1907. The respondent is the judge of the Twenty-ninth Judicial Circuit, and as such judge of the circuit court of Henry county, Missouri.

“On the 21st day of June, 1907, the relator, Bixman, who was then and for many years had been a dramshop keeper in the city of Clinton, Missouri, filed in the office of the clerk of the county court of Henry county, Missouri, his petition and application in due form for dramshop license, for presentation to the said county court at its next term, which convened on Monday, the 1st day of July, 1907.”

“On Monday, July 1, 1907, the county court met to hold its July term, but was unable to hear the contests over the granting of saloon licenses on that day and set over the hearing of the' application until the next day, Tuesday, July 2, 1907, on which day the petition and application of relator, which had been on file since June 21,1907, when they were filed with the clerk, were presented to the county court. There was a contest, both petitioners and remonstrators appearing in person and by counsel and upon such hearing the county court on Tuesday, July 2, 1907, made an order granting license to relator to keep a dramshop for six months.

“The court approved the bond and levied the ad valorem county and State license tax under provisions of section 2996, Revised Statutes 1899, all of which were paid by relator, who received his license and is operating a saloon under such license.

“At the regular September term, 1907, of the circuit court of Henry county, Missouri, H. P. Paris, a resident and real estate owner of the city of Clinton, Missouri, presented his petition for a writ of certiorari, being entitled:

“The State of Missouri, at the relation of H. P. Paris, Relator, v. T. W. Ogg, M. L. Amick and John Harrison, as justices of the county court of Henry county, Missouri, Respondents.

“To this application and petition, the justices of the county court demurred on the ground that the dram-shop keeper, John N. Bixman, was a necessary party and the real party in interest.

“This demurrer being overruled, the respondents filed motion to make said Bixman a party and that he be notified of said proceedings for the reason that he was the real party in interest.

“The court sustained this motion and ordered' a writ of certiorari returnable on the 18th day of November, 1907.

“On November 18, 1907, the county judges made their return to the writ, and the said Bixman, having been duly served with notice, appeared and filed his application for a change of venue and notice in due form.

“Thereupon, the relator therein, H. P. Paris, filed his motion to the court to refuse to grant a change of venue upon the ground that the right of the change of venue does not exist in certiorari proceedings, and that the court had no power to grant a change.

“The circuit court sustained this motion and overruled the application for a change of venue. The circuit court then set the certiorari proceedings down for trial on November 22, 1907, and would have tried the cause on that date but for the provisional Avrit of prohibition issued, and served on respondent in this cause on November 21, 1907.

“The contentions on the part of the respondent in this cause, as well as of the relator, Faris, in the certiorari proceedings, are as follows:

“(1) The right to a change of venue does not exist in certiorari proceedings at all and that certiorari proceedings are not a civil suit within the meaning of section 818, Revised Statutes 1899.

“(II) Relator Bixman is not a party to the certiorari proceedings and has no standing in said cause, and therefore no right to a change of venue.

“(Ill) That the error, if any, in overruling the application for a change of venue, can be corrected on appeal or AA’rit of error, and therefore the relator is not entitled to the remedy by Avrit of prohibition.”

We shall not attempt, to consider the argument of the parties except with reference to the right of defendant to a change of venue and the necessity for the writ. A right to a change of venue is denied to exist in a certiorari proceeding on the alleged ground that it is not a civil proceeding within the meaning of section 818, Revised Statutes 1899. The lang-uage of said section so far as necessary for the purpose of the case reads as follows: “In Avhat cases a change of venue may be ■aAvarded. A change of venue may be aAvarded in any civil suit to any court of record for the following causes: 3?

On petition to revieAV a decree in a case of divorce, the court held that the statute did not authorize a change of venue. [Cole v. Cole, 89 Mo. App. 228.] The court based its ruling on the theory that it was but a .continuation of the original action. That: “All proceeding of an ancillary character, and designed to effectuate or change a decree already entered are commonly regarded as part of, and incidental to the original suit.” “The right to a change of venue is purely statutory and. has no existence outside of the special grant of power.” [State ex rel. v. Wofford, 119 Mo. 408.] That was a case where application had been made for a change of venue from Jackson county, a county containing more than one hundred thousand inhabitants to some county outside of the circuit in which it was pending; the statute not providing for such a change under such a circumstance. “An application for a change of venue can only disqualify the judge before whom the case is pending.” [State ex rel. v. Woodson, 86 Mo. App. 253.] It was there sought to disqualify judges of other circuits. This the statute did not authorize. There are other cases of similar import. The respondent cites these cases for the purpose of showing that the right to a change of venue is purely statutory to be strictly construed, and as an argument against relator’s right to the remedy. We agree with him that the statute is to be strictly construed, but do not consider the cases referred to as pertinent to the question involved, as they pertain to the causes and not to the character of the eases to Avhich the statute applies.

The right under the statute is given in any civil suit. The phrase “civil suit and civil case,” refer to the legal means or proceedings by which the rights and remedies of private individuals are enforced or protected in contradistinction to the Avords criminal case, which refer to public Avrongs and their punishment.” [State ex rel. v. Riley, 203 Mo. 175.] This definition was applied to a proceeding under the statute for the incorporation of a drainage district, and it was held that it Avas a civil suit “by which private rights are protected, enforced, or their violation redressed.” The proceeding to Avhich the certiorari Avas addressed involved the right of the relator to a license to sell liquor as a dram-shop keeper, and as such Avas a private right if the law had been complied with by the county court in granting such license, and the proceeding Avas a civil suit AAdthin the foregoing definition. It is useless to multiply authorities as it seems to us there can be no question but what the right to the remedy exists in cases of this kind.

But it is contended that the relator was not a party or rather a proper party to the certiorari proceedings. It has been held that the judges of the county court in such cases are not entitled to a change of venue, because they have no interest in the matter. They are not called upon to defend themselves. [State ex rel. v. County Court, 100 Mo. App. 479.] We suppose it was for this reason that the county judges in their return to the writ of certiorari demurred on the ground that Bixman, the relator here, was not made a party, to the proceedings and that aftenvards when their demurrer was overruled they filed a motion to have him made such a party. He Avas adjudged by the court as a necessary party, notified of the proceedings and filed his return Avith that of the county judges. The relator was the only person Avho had any rights involved save that of the public Avhich was represented by Faris the petitioner for the Avrit therein. He Avas properly made a party by reason of his interest and by the further reason that whatever adjudication should be made in the case, would finally determine his right to a license. We say finally for if he Avas not alloAved to defend he could not appeal. It is true the judges of the couuty court could appeal from whatever judgment the court might render, but as they had no interest in the matter it is not probable they would have done so.

Because the right of appeal will lie is not a ground for denying the writ of prohibition, where the remedy by appeal is inadequate or not sufficiently speedy. [State ex rel. v. Allen, 45 Mo. App. 557; State ex rel. v. Eby, 170 Mo. 497; State ex rel. v. Fort, 107 Mo. App. 328.] If the judgment of the court, to be rendered, should be against the relator’s right to a license, an appeal would not operate to stay its effect and he would not be authorized to continue his business during the pending of such appeal. In -such a case an appeal would be inadequate.

It is not denied that the grounds assigned by .relator in his application for a change of yenue are sufficient, if he be a proper party and one authorized in cases of this kind.

Much has been said in the briefs and arguments of counsel, that we deem it unnecessary to discuss. And questions are raised as to the merits of the case which we think are foreign to the actual issues. We have in what has been said restricted ourselves to the sole question of relator’s right to a change of yenue, mindful of the fact that the merits of the case are for adjudication by the circuit court.

We hold that the respondent’s return to the writ is insufficient and adjudge the change of yenue be awarded-as prayed for.

All concur.