STATE OF MISSOURI at the relation of the KANSAS CITY PUBLIC SERVICE COMPANY, a Corporation, Relator, v. MARION D. WALTNER, Circuit Judge of the Independence Division of the Circuit Court of Jackson County, Missouri, Respondent. - No. 37566. STATE OF MISSOURI at the relation of the KANSAS CITY PUBLIC SERVICE COMPANY, a Corporation, Relator, v. MARION D. WALTNER, Circuit Judge for the Independence Division of the Circuit Court of Jackson County, Missouri, Respondent. ----No. 37575. STATE OF MISSOURI at the relation of MASSACHUSETTS BONDING & INSURANCE COMPANY, a Corporation, R. L. WILLIS and GARRETT A. WALSH, Relators, v. R. B. BRIDGEMAN, Judge of the Circuit Court of Clinton County, Missouri, Respondent. No. 37724. STATE OF MISSOURI at the relation of MASSACHUSETTS BONDING & INSURANCE COMPANY, a Corporation, R. L. WILLIS and GARRETT A. WALSH, Relators, v. R. B. BRIDGEMAN, Judge of the Circuit Court of Clinton County, Missouri, Respondent. - No. 37725.
No. 37566, No. 37575, No. 37724, No. 37725
Supreme Court of Missouri
March 25, 1943
169 S.W.2d 697 | 350 Mo. 1021
Division Two
The proceedings in which the Kansas City Public Service Company, a corporation, is relator seek to prohibit the Honorable Marion D. Waltner, Circuit Judge for the Independence Division of the Circuit Court of Jackson County, Missouri, from taking any further action or exercising any further jurisdiction in three actions for damages against said corporation pending in said court. Relator, as stated, filed in each of said cases an application for a change of the Judge, alleging it could not have a fair and impartial trial because said Judge was prejudiced against said relator. Sufficient for the present, said applications were overruled. The instant proceedings are upon the theory said Judge is about to exceed his jurisdiction in taking further action in said causes.
The cases in which Massachusetts Bonding & Insurance Company, a corporation, R. L. Willis and Garrett A. Walsh are relators and the Honorable R. B. Bridgeman, Judge of the Circuit Court of Clinton County, Missouri, is respondent, arose out of two separate actions,
In each of said actions an application or applications for a change of the Judge was filed alleging that the relator (filing the same) or the relators could not have a fair and impartial trial because said Judge was prejudiced against said relator or relators, and that the plaintiff had an undue influence over the mind of said Judge et cetera. While relators’ applications were pending, George Trinastich in the Trinastich case and plaintiff in the Kassebaum case filed their respective applications for changes of venue from the county on the ground defendant Massachusetts Bonding & Insurance Company had an undue influence over the inhabitants of Jackson County, Missouri. These several applications were disposed of on January 31, 1941, by Judge Waltner. First, he overruled relators’ several applications based on his prejudice. Exceptions were noted. Plaintiffs’ applications for changes of venue were thereupon taken up and considered together. Relators filed in each case counter affidavits refuting the respective plaintiff‘s application. (See
After unsuccessful efforts to have the Circuit Court of Clinton County remand the respective causes to the Independence Division of the Circuit Court of Jackson County, relators instituted the instant proceedings upon the theory, among others, that Judge Waltner in transferring said actions exceeded his authority and Judge Bridgeman in threatening to proceed on the merits was likewise exceeding his powers.
Other facts deemed material will be developed in the discussion of specific issues.
The foregoing suffices as a general outline.
Right to writ. In each of the four instant prohibition proceedings respondents contend our prerogative writ may not be invoked to review an order granting or refusing a change of venue or a change of the Judge. They stress State ex rel. Kochtitzky v. Riley (Banc, 1907), 203 Mo. 175, 192(II), 101 S. W. 567, 570(2)
Relators present an extensive review of proceedings in prohibition in Missouri. They point out that the writ issues to prevent a tribunal having judicial or quasi-judicial powers from exercising jurisdiction when it has no jurisdiction whatsoever (State ex rel. Anheuser-B. Brewing Ass‘n v. Eby (Banc, 1902), 170 Mo. 497, 520, 71 S. W. 52, 60; Howard v. Pierce (1866), 38 Mo. 296, 300) or when such tribunal, having jurisdiction, nevertheless undertakes to exceed the jurisdiction possessed (State ex rel. Page v. Terte (Banc, 1930), 324 Mo. 925, 933, 25 S. W. (2d) 459, 462[4]; Dahlberg v. Fisse (1931), 328 Mo. 213, 223, 40 S. W. (2d) 606, 610[11, 13]; State ex rel. Schoenfelder v. Owen (1941), 347 Mo. 1131, 1139[2], 152 S. W. (2d) 60, 64[1]. The distinction between an absolute lack of jurisdiction and an excess of jurisdiction is more readily recognized than the distinction between an excess of jurisdiction and an error in the exercise of jurisdiction. A want of jurisdiction or an excess of jurisdiction may be corrected by appeal or writ of error. Where the excess with respect to power may be corrected by a resort to other procedure, the issuance or withholding of the writ has been said to rest in the exercise of a sound judicial discretion. State ex rel. McCaffery v. Aloe (Banc, 1899), 152 Mo. 466, 483, 484, 54 S. W. 494, 498; State ex rel. Ellis v. Elkin (1895), 130 Mo. 90, 109(2), 30 S. W. 333, 337(2), 31 S. W. 1037; State ex rel. Larew v. Sale (1905), 188 Mo. 493, 496(I), 87 S. W. 967(1); State ex rel. Bernero v. McQuillin (Banc, 1912), 246 Mo. 517, 532(a), 152 S. W. 347, 351(a); State ex rel. Warde v. McQuillin (Banc, 1912), 262 Mo. 256, 266(a), 171 S. W. 72, 74(a). Consistent with the discretion to be exercised, a policy of inclusion and exclusion has been adopted in arriving at the issuance or withholding of the writ in each particular exigency and no
In State ex rel. Dunlap v. Higbee (Banc, 1931), 328 Mo. 1066, 1076, 1079, 1080, 43 S. W. (2d) 825, 829, 830, 832, Judge Knight, of the Mercer Circuit Court, had disqualified himself in a cause and called in Judge Higbee. It was considered that a judge who was disqualified to hear a case was without authority to select the judge who should try the case; that authority vested in a judge to call in another judge to hold part of a term of court did not authorize the calling of another judge to try a particular case; and our provisional rule in prohibition was made absolute. We said (l. cs. 1070 and 826, respectively) that the record did not present a question of jurisdiction, but of error, and that our provisional rule having issued, we would determine the question.
In State ex rel. Renfro v. Wear (1895), 129 Mo. 619, 31 S. W. 608, Judge Wear, by an order of the court, disqualified himself as judge in a prosecution against his son for murder and called in Judge Riley, but upon Judge Riley appearing at the proper time and place and accepting the call, Judge Wear declined to vacate the bench and adjourned court to a later day, when a special judge was elected. Considering “Judge Riley was the only judge who could lawfully hear and try the cause” prohibition issued against Judge Wear and the special judge.
In State ex rel. Sawyer v. Kelly (1932), 330 Mo. 143, 148[2], 48 S. W. (2d) 864, 866[2], the court, in a criminal proceeding threatened to examined the five affiants who had given affidavits in support of a
State ex rel. Judah v. Fort (Banc, 1908), 210 Mo. 512, 109 S. W. 737. An act of 1907 (Laws 1907, p. 209) created an additional division, to be known as Division Two, of the criminal court of Jackson County, vesting authority in the Judge of Division One, whenever the business of the court required, to notify the Judge of Division Seven of the circuit court of said county to open said Division Two of said criminal court and proceed with the business thereof. Section 8 of the Act provided for allowing a change from one division to the other upon an application for a change of the Judge of the division to which the application was made. Relator Judah, as defendant, filed such an application against the Judge of Division One at a time when Division Two was not in existence, the Judge of Division One not having required such assistance. The Judge of Division One called in Judge Fort of Stoddard County to try the case and not the Judge of Division Seven. A majority of this court considered that Division One was required to transfer the cause to Division Two; that Judge Fort was threatening to exercise jurisdiction not rightly possessed; and that our preliminary rule should be made absolute.
State ex rel. Larew v. Sale (1905), 188 Mo. 493, 496, 87 S. W. 967, 968, states: “On the other hand, whilst the main office of the writ is to keep the court to which it is addressed within the bounds of its jurisdiction, yet, in the exercise of the discretion above referred to, the writ is sometimes used to keep a court from doing what it has no lawful authority to do in a case the general nature of which is within its jurisdiction.”
Excess of jurisdiction. Among the several attacks against the order changing the venue of the Trinastich and Kassebaum cases to the Circuit Court of Clinton County, Honorable R. B. Bridgeman, Judge, is the contention that said order was in excess of the jurisdiction of the court presided over by Judge Waltner because no evidence was heard. The material portion of
At the consolidated hearing on the plaintiffs’ applications for changes of venue following the filing of the counter affidavits on behalf of relators, plaintiffs tendered in evidence certain affidavits. Specific objections, followed by a motion to strike, were interposed to the affidavits, embracing among others and briefly put, the grounds that said affidavits did not constitute evidence, were hearsay, and deprived relators of all opportunity of cross-examination et cetera. No evidence was heard. It has been stated many times that the right to a change of venue is statutory. The court then can grant a change of venue only when the petitioner is proceeding within the meaning of the statute. The quoted provisions of
This record presents a change of venue granted without hearing any and not after hearing the evidence. We think the court exceeded the statutory authority conferred in changing the venue of the Trinastich and Kassebaum cases to Clinton County.
Sufficiency of counter affidavit. One of the attorneys made the counter affidavit in each of the cases nisi on behalf of relator Massachusetts Bonding & Insurance Company. The plaintiffs presented no issue with respect to said affidavits. They and the court considered the affidavits sufficient and undertook to conduct the hearing contemplated by
The cases relied upon by respondent involved individual litigants. While Jaffray v. Claflin Co., supra, speaks of “Jaffray & Co.,” said party in other portions of the opinion is referred to in the plural and in the title in the official report as “Jaffray et al., appellants.” The record filed here shows “Jaffray & Co.” was a partnership. St. Louis, Oak Hill & Carondelet Ry. Co. v. Fowler, 113 Mo. 458, 469, 20 S. W. 1069, 1071, decided in 1892, prior to the authorization of an affidavit by an agent or attorney, observed: “In our opinion the application for a change of venue by a corporation may be verified by any officer or agent of the corporation.” See also Corpenny v. Sedalia, 57 Mo. 88, 91, 92. It is difficult to conceive of a distinction justifying a discrimination between parties to a change of venue controversy which relieves the party having the affirmative from restrictions exacted of the party having the negative. So viewed, the General Assembly must have considered, subsequent to the quoted observation in St. Louis, O. H. & C. Ry. Co. v. Fowler, supra, that the counter affidavit (
Section 1062, R. S. 1939, differs materially from Sec. 2261, R. S. 1889, in that said Sec. 2261 explicitly contemplated that the party shall annex an affidavit to the truth of the petition and that he has just cause to believe et cetera, whereas the proviso of
We hold that relator‘s counter affidavits called for judicial action.
Waiver. Respondent asserts relators, by the proceedings and actions mentioned infra, waived any issue as to lack of jurisdiction of the Circuit Court of Clinton County and presents several subdivisions of said principal contention for consideration. Respondent relies mainly upon and stresses cases of which State ex rel. Pacific Mutual Life Ins. Co. v. Grimm, infra, is illustrative. Relators claim, among other things, the procedure to be within the holdings of Mertens v. McMahon, infra.
After the cases reached the Circuit Court of Clinton County, the attorneys for relators filed pleas in each cause on March 24, 1941, “denying that this court has jurisdiction of the parties hereto or the subject-matter hereof, and, appearing solely for the purpose of this plea and for none other,” prayed for orders “striking the filing of this cause from the records of this court, quashing all proceedings herein, and holding that this court is without jurisdiction of this cause.” On April 7, 1941, entries were made in the Trinastich case to the effect that defendant Massachusetts Bonding & Insurance Company and defendants Walsh and Willis filed separate pleas to the jurisdiction and motions to remand, and answers. (We think it would be too harsh a rule to justify to hold, as respondent in effect asks us to hold in a portion of his presentation, that obtaining leave, if leave were obtained by relators, to contest jurisdiction constituted a waiver of the jurisdiction contested.) On said April 7 relators filed in each cause pleas similar to the pleas filed March 24, but in more detail, and prayed for orders remanding the causes to the Circuit Court of Jackson County, Missouri, at Independence. It is well to remember that relators’ applications for changes of the Judge in the Circuit Court of Jackson County at Independence had been overruled, and that relators’ said pleas and motions filed in the Clinton County Circuit Court embodied issues with respect to respondent‘s jurisdiction based on the overruling of relators’ said applications for changes of
State ex rel. Pacific Mut. Life Ins. Co. v. Grimm, 239 Mo. 135, 171(II), 143 S. W. 483, 494[3], was a proceeding in prohibition involving an action instituted in the circuit court of St. Louis on an insurance policy. The defendant appearing specially, did not answer, filed a motion which “not only asked that the service and return had therein be quashed, but it also asked that the petition filed be dismissed because of matters of defense entirely outside of the record which it alleges do not exist, and as to which it tenders issues by a verified plea, and which, if heard upon their merits, would require the introduction of evidence to establish their truthfulness, which could not be done if the court had no jurisdiction over the person of the defendant.” The court said: “The tender of those matters of defense or abatement which do not appear in the record proper, and which challenge the right of plaintiff to maintain an action on this policy in this state, no matter how the summons was served, would be a waiver of the right to have the return quashed, even if such right had never existed.” This was held to constitute a general appearance in the case and to give the court jurisdiction over the person of defendant.
Mertens v. McMahon, 334 Mo. 175, 66 S. W. (2d) 127, omitting details, was an action instituted in Gasconade County, where the facts showed “legal, if not actual, fraud in obtaining the presence of defendant [a resident of St. Louis] in Gasconade County and then getting service on him in this case” (l. c. s 187 and 132). The defendant filed a combined plea to the jurisdiction, appearing specially, and answer (l. c. s 180 and 128). We held the court should have sustained defendant‘s plea to the court‘s jurisdiction (188 and 132); and, among other things, that joining a plea to the jurisdiction with an answer, where the question of jurisdiction relates to jurisdiction over the person and involves matter not shown by but dehors the record, and preparing for trial on both issues and, after the overruling of the plea to the jurisdiction, participating in the trial on the merits did not waive the issues presented in the plea to the jurisdiction, defendant all the while maintaining the court to be without jurisdiction over his person and asking no affirmative relief.
We think relators’ procedure is sanctioned under Mertens v. McMahon. The want of jurisdiction did not appear upon the face of the record. It had to be raised by pleading the facts. State ex rel. Pacific Mutual Life Ins. Co. v. Grimm, 239 Mo. l. c. 165, 173, 143 S. W. l. c. 492, recognizes the right in such circumstances to join a plea to the jurisdiction with an answer. The instant relators were challenging respondent‘s jurisdiction all the while. Their appearances were special for that purpose. Manifestly they were not waiving the challenge to the jurisdiction. Consult State ex rel. Union El. L. & P. Co. v. Sevier, 339 Mo. 732, 737[3], 98 S. W. (2d) 980, 982[3];
What we have said may be sufficient, but as we view it the instant proceedings involve more than jurisdiction over the person. Relators, nisi as well as here, challenged respondent‘s jurisdiction over the cause of action, the subject-matter and the person of the relators. A party appearing generally in a court of origin having general jurisdiction over the subject-matter usually confers jurisdiction over his person. The Circuit Court of Clinton County is a court of general jurisdiction. It, however, possesses no such general jurisdiction over a particular cause of action, and the litigants thereto, instituted and pending in Jackson county. It may acquire jurisdiction thereover upon a proper change of venue. This right to a change of venue is purely statutory. Consult, among others, Heather v. Palmyra, 311 Mo. 32, 42(IV), 276 S. W. 872, 875 [5]. Consequently, with respect to matters involved in the change of venue proceedings the power and authority of courts are of a limited rather than a general nature. This is not a holding that litigants may not so proceed as to subject themselves to judgments rendered by a court to which a cause is wrongfully transferred upon a change of venue from the county of origin. Coffee v. Carthage, 200 Mo. 616, 629, 98 S. W. 562, 565. The cases relied upon by respondent do not establish that the steps taken by relators in the circumstances of record waived their right to question the propriety of the change of venue and the jurisdiction of respondent. The issue differs materially from cases involving jurisdiction over the person of a defendant by a court of general jurisdiction in which the particular action originated. It was the duty of respondent to purge his docket of the causes and to remand them to the Circuit Court of Jackson County at Independence. Penfield v. Vaughan, 169 Mo. 371, 375, 69 S. W. 303, 304; State ex rel. Scotland County v. Bacon, 107 Mo. 627, 634, 18 S. W. 19, 21; State v. Bailey, 344 Mo. 322, 328, 126 S. W. (2d) 224, 227[4]. It is evident that two appeals might be necessary for relators’ protection. The facts are undisputed that the change of venue was granted without hearing evidence, contrary to the authority conferred by
PER CURIAM:—The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.