150 Mo. 233 | Mo. | 1899
This proceeding questions the correctness of the action of Judge McKee in awarding a change of venue from the circuit court of Knox county to that of Schuyler county.
The petition for the alternative writ, among other things in substance and form alleges the presentation of the application upon due notice given, “based alone on the ground of the prejudice and disqualification of the judge,” etc., whereupon the respondent judge “immediately awarded the venue to the circuit court of Schuyler county, Missouri, without asking the parties whether they could or would agree on a special judge to try the cause, or whether both parties would consent to the election of attorney at the bar, present at an election to be held by the clerk, as provided by law; and failed and refused to enter on the record preceding the awarding of the change of the venue to Schuyler county the truth and the fact as to said agreement or failure of the parties to agree as aforesaid.” The petition then alleges the sending by the clerk of the Knox circuit court of the trans-script, etc., to the clerk of the Schuyler circuit court; that when the cause came on to be heard at the next term of the latter court it was then and there held by that court that no
Thereupon tbe judge of tbe court last mentioned, directed tbe clerk of bis court to certify tbe cause back to tbe court from whence it came, and this was done. When tbe Knox circuit court convened at its next term, tbe defendant in tbe cause moved tbe court by written motion, to strike tbe same from tbe docket. Plaintiff thereupon (relator herein) called tbe attention of tbe judge of tbe Knox circuit court to tbe ruling of tbe Schuyler circuit court, and also moved tbe court by written motion to proceed and ascertain whether tbe parties could or would agree on a special judge, etc., but tbe judge denied tbe motion of plaintiff and then and there made an order striking tbe cause from tbe docket, and would not reinstate tbe same.
Tbe respondent judge, waiving tbe issuance of tbe alternative writ, appeared and filed answer in which be admits most of tbe allegations of tbe petition and then specifically states: “Admits that be granted a change of venue without asking tbe parties whether they could or would agree on a special judge to try tbe cause, or whether both parties would consent to tbe election of an attorney of tbe bar present at an election to be held by tbe clerk. Admits that tbe clerk of the Knox circuit court, as commanded, made out and sent to tbe office of tbe clerk of tbe circuit court of Schuyler county a complete transcript of tbe record and tbe original papers in tbe cause and tbe ten dollars filing fee required by law, and sent tbe samé to said clerk of said Schuyler county. Admits that at tbe M!ay term, 1898, of tbe Schuyler county
“Eespondent for further answer to said petition, denies each and every allegation therein contained not hereinbefore admitted to be true.
“Eespondent for further answer states that at the time the said plaintiff in said suit as aforesaid filed her application for a change of venue as aforesaid, and at the time respondent, as such judge, passed upon and granted said change of venue the parties to said suit did not thereupon agree upon a special judge, nor did both parties request the election of a special judge to try said cause.”
In tbe case last cited, it was sought by plaintiffs by bill in equity to have declared null and void a decree entered in favor of tbe railroad company and against Stearns for tbe recovery of a large sum of money and tbe foreclosure of bis equity of redemption in some 8,000 acres of land. Stearns appeared and filed an answer, and tbe plaintiff moved to strike out a part thereof. Thereafter, and at the August term, 1878, tbe Newton circuit court made an order changing tbe venue of tbe cause to tbe Greene county circuit court. This order, it is alleged, “was made without, and not founded upon, or pretended to be founded upon, any disability or disqualification of tbe judge of said Newton circuit court, on account of bis being interested in, or related to, either party, or by having been of counsel in said case, and without any application having been made therefor by either party to said cause, and without any consent of the parties in writing being filed in said Newton circuit court, as provided and required by law.” Tbe Greene circuit court, upon tbe filing of tbe transcript therein, took cognizance of tbe cause, and sustained tbe motion to strike out part of tbe answer. Stearns appeared in that court for tbe special purpose of making a motion to strike tbe cause from tbe docket for want of jurisdiction of that court. This motion being overruled, be made no further appearance, and thereafter tbe court rendered a judgment and decree in conformity to tbe prayer of tbe petition.
2. But the case of State ex rel. v. Bacon, 107 Mo. 627, has been pressed upon our attention qs opposed in effect to the decision of that case, and this by reason of a change in the statute having occurred since the rulings heretofore noted. The change referred to consists of the addition of the following proviso to section 3733, R. S. 1879, as the same now appears in section 2262, R. S. 1889, to wit: “Provided, that where the application for a change of venue is founded on the interest, prejudice or other objection to the judge, a change of venue shall not be awarded to another county without a reasonable opportunity having first been allowed the
Section 2262 aforesaid bas since been amended and a proviso substituted in lieu of tbe one just quoted, and it is tbe following: “And provided further, that where tbe application is founded on tbe interest, prejudice or other objections to tbe judge, a change of venue shall not be awarded to another county if tbe parties shall thereupon agree upon a special judge, or if both parties request tbe election of a special judge; and in tbe latter case a special judge shall be elected as provided by law.” [Laws 1895, p. 93.] So that tbe words “reasonable opportunity” have been entirely eliminated from tbe statute and from consideration, and it was upon those words that tbe case- of State ex rel. v. Bacon turned and was decided. Tbe statute as it now stands amended, does not any longer require tbe judge who is charged with prejudice, etc., to give tbe parties “a reasonable opportunity,” etc., but casts upon their shoulders tbe duty of acting when tbe application is presented, to wit, by agreeing upon a special judge, or by both parties requesting tbe election of a special judge. Tbe return of tbe respondent judge shows that no such agreement on a special judge was made nor a request by both parties for tbe election of a special’judge. This allegation not being controverted stands admitted of record, and shows tbe action of tbe judge of tbe Knox circuit court to have been entirely correct and in entire conformity to tbe present statute. But apart from such return, tbe presumption would be that tbe Knox circuit court acted correctly in awarding tbe change of venue.
Such favorable presumptions invariably attend tbe acts and doings of courts of general jurisdiction unless countervailed in an appropriate way. [Huxley v. Harrold, 62 Mo. 516, and numerous other cases.]
3. Tbe ease of State ex rel. v. Bacon, supra, was incorrectly decided, however, even if Judge Bacon did fail to
These former rulings of this court on the absolute necessity of preserving exceptions in order subsequently to take advantage of an erroneous ruling respecting a change of venue were wholly overlooked or else ignored in Bacon’s case, and therein and thereby error was committed; error which we refuse to sanction.
4. The circuit court of Knox county was a court of general jurisdiction; it had jurisdiction over the general class of cases of which plaintiff’s case was a member and the jurisdiction of that court had attached to the particular subject-matter which constituted plaintiff’s cause of action, and this by reason of suit brought and process served on the defendant in the cause as well as by his personal appearance to the action. This being the case, the exercise of -the complete jurisdiction thus possessed by the Knox circuit court, was not ousted by reason of the fact that such jurisdiction was erroneously exercised, if indeed it was thus exercised. The distinction lies between the existence of jurisdiction and its erroneous exercise. Because: “The power to decide correctly, and to enforce a decision when correctly made, necessarily implies the same power to decide incorrectly, and enforce a decision when incorrectly made” (Davis v. Packard, 10 Wend. loc. cit. 71) ; and there is no more divestiture of jurisdiction in the latter case than in the former. Jurisdiction still survives despite of error committed; this is the
Nor was tbe order for tbe change of venue in relator’s case any more a special jurisdictional act than a hundred other similar orders made by tbe circuit courts in tbe customary course of their daily duties, as for instance tbe issuance of a writ of garnishment or tbe ordering of a venire; hence no manner of necessity existed to cause tbe record to make recital about tbe failure of tbe parties to agree upon a special judge or to request tbe election of such a judge. And even bad there been such necessity, its existence being ignored would not destroy tbe existence of tbe jurisdiction of tbe trial court to do tbe act now challenged.
Recurring to tbe subject just intermitted, of tbe proviso to tbe statute, it is in line with previous remarks to state that tbe disobedience of a positive statute or even of a prohibitory statute, does not abate by one jot or one tittle tbe power of tbe disobedient court to make and enforce tbe improper and lawbreaking order. This principle is illustrated and exemplified by numerous cases and denied by none.
Thus in Martin v. State, 12 Mo. loc. cit. 475, tbe effect of tbe disobedience by a trial court of a prohibitory statute was discussed by Judge Ryland, who speaking for tbe court, said: “The St. Louis circuit court, and tbe judge thereof in vacation, bad the power to grant and issue tbe writ. This gives to such court or judge jurisdiction over tbe subject-matter; and though tbe statute expressly declares that bo person imprisoned on an indictment found in any court of competent jurisdiction, or by virtue of any process or commitment to enforce such indictment can be discharged under tbe provisions of this act; but may be let to bail if tbe offense be bailable, and if tbe offense be not bailable be shall be remanded forthwith,’ yet this section does not take away
In Ex parte Jilz, 64 Mo. 205, Martin v. State, 12 Mo. 474, as well as Yates v. People, 6 Johns. 337, were approvingly followed, and the same thing occurred in State v. Wear, 145 Mo. 162, in a most elaborate and exhaustive opinion delivered by Judge Buegess, in which the principle now being discussed was illustrated and enforced by a wealth of argument and authority.
The true rule in cases like the present is the one- announced by the Supreme Court of Wisconsin in a case where a statute of that State prohibited strict foreclosures of mortgages except by consent of parties in open court but such a decree without consent was held not to be void, the court saying: “The only question in such case is, had the court or tribunal power, under any circumstances, to make the order or perform the act?” [Salisbury v. Chadbourne, 45 Wis. loc. cit. 77; Vanfleet’s Col. Attack, secs. 61, 670.]
5. Furthermore, the writ of mandamus can not be made to perform or to usurp the functions of an appeal or writ of error. Where the matter is reviewable by appeal or writ of
“It does not lie to correct the errors of inferior tribunals by annulling wkat they have done erroneously, nor to guide their discretion, nor to restrain them from exercising power not delegated to them.” [Dunklin Co. v. Dist. Court, 23 Mo. 449.] The granting or the refusal of a change of venue may be erroneous; but the party in such case has his remedy by appeal or writ of error and mandamus does not lie in such case. The action of the trial courts in refusing or granting a change of venue is constantly reviewed on appeal or error. [State v. Alexander, 66 Mo. 148; Corpenny v. Sedalia, 57 Mo. 88; Woodrow v. Younger, 61 Mo. 395; State v. Burns, 54 Mo. 274, and other cases.] “And the fact that the person aggrieved has, by neglecting to pursue his statutory remedy placed himself in such a position that he can no longer avail himself of its benefit, does not remove the case from the application of the rule, and constitutes no ground for interference by mandamus.” [High’s Extr. Leg. Rem. (3 Ed.), sec. 16.]
And the same rule would doubtless hold where a person, by failing to except at the proper time, has put it out of his power to review by appeal or error the improper granting of a change of venue.
6. Moreover, even if relator were entitled to the writ on other grounds, still it must be denied to her on this one alone regardless of all other considerations: There is no allegation in the petition that when Judge McKee awarded the change of venue that there was any person present or available competent to act as special judge, or that the requisite number of lawyers were present from whom and by whom to elect a special judge. This of itself is fatal to relator’s success.