169 S.W.2d 697 | Mo. | 1943
Lead Opinion
The above entitled four original petitions seek our prerogative writ of prohibition. Honorable Edward A. Barbour, Jr., was appointed Special Commissioner to take testimony and make findings of fact and conclusions of law and report. Our Commissioner recommended in his reports of July 9, 1942, that the preliminary writ in each case be made permanent; submitting two reports — one in the proceedings in which the Kansas City Public Service Company is the relator (our docket Nos. 37,566 and 37,575), the other in the proceedings in which the Massachusetts Bonding Insurance Company et al. are the relators (our docket Nos. 37,724 and 37,725). The several proceedings were heard together and the bill of exceptions filed here is in excess of 3000 pages. Certain issues in each of the several proceedings are basically the same legalistically. For instance, each involves the application or applications for a change of the Judge (sometimes designated for the substitution of another judge) of the Circuit Court of Jackson County at Independence on behalf of the litigants-defendant [700] in the several actions nisi. Sec. 2121, R.S. 1939. Cf. Sec. 1058, R.S. 1939. (The statutory and common designation, "change of venue" or "change of venue from the judge" have been considered misnomers in that such applications technically do not seek a change of venue of the trial. Consult State ex rel. McAllister v. Slate (Banc),
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, *1032 also for damages, instituted against said relators as defendants in the Circuit Court of Jackson County, Missouri, at Independence, Honorable Marion D. Waltner, Judge. In one of said actions, known in the record as the Trinastich case, George Trinastich and Emily Trinastich are plaintiffs. In the other, known as the Kassebaum case, L.M. Kassebaum is plaintiff.
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. [701] 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 Sec. 1062, R.S. 1939, quoted infra.) No objection was made to said counter affidavits. Plaintiffs offered in support of their applications, over objections interposed and motion to strike, with exceptions saved, a number of affidavits. The court then granted plaintiffs' applications in the respective cases, relators excepting, and transferred both causes to the Circuit Court of Clinton County, Missouri. Thereafter, on February 14, 1941, upon plaintiffs' motion, and over objections, with exceptions saved, the order in the Kassebaum case was set aside to permit plaintiff to amend the application in a matter considered not material in the instant proceeding and the order was again entered.
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.
[1] 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 *1033
(Banc, 1907),
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),
In State ex rel. Dunlap v. Higbee (Banc, 1931),
In State ex rel. Renfro v. Wear (1895),
In State ex rel. Sawyer v. Kelly (1932),
State ex rel. Judah v. Fort (Banc, 1908),
State ex rel. Larew v. Sale (1905),
[2] 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 Sec. 1062, R.S. 1939, reads: "in all cases in counties in this state which now have or may hereafter have a population of more than 75,000 inhabitants and wherein the removal is asked on the ground of objections to or prejudice of the inhabitants of such county and the adverse party or parties shall have filed counter affidavit controverting the objection to or the *1036 prejudice of the inhabitants of the county, the court shall hear evidence on the issue and determine the same on the merits of such evidence, and if such issue is determined in favor of the applicant for the change of venue, the change shall be awarded, as hereinbefore provided."
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 Sec. 1062 are explicit. They call for a hearing of evidence and a determination based upon such evidence; i.e., competent evidence heard under circumstances affording the adverse party, for the protection of his rights, those safeguards the law guarantees, including an opportunity for cross-examining the witness heard as well as the introduction of evidence in his own behalf. State v. Bohanan (1882),
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.
[3] 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 Sec. 1062, supra. Respondent now asserts said affidavits were insufficient to present any issuable fact because not made by a "party" to the suit, that is, by the president, vice-president, secretary, treasurer, or general manager, some chief executive or administrative officer of the corporate party, the affidavit of an agent or attorney being insufficient. An intelligent understanding of respondent's position calls for a detail of statement. *1037
Respondent points out that in 1895 the following proviso was added when now Sec. 1062 was repealed and reenacted: "Provided, that if the removal is asked on the ground of objections to the inhabitants of the county, and the adverse party shall have[704] filed a counter-affidavit controverting the objections to the inhabitants of the county, the court shall hear evidence on the issue and determine the same on the merits of such evidence; and if such issue is determined in favor of the applicant for the change of venue, the change shall be awarded as hereinbefore provided" (Laws 1895, p. 93; R.S. 1889, Sec. 2262; R.S. 1899, Sec. 822); that Sec. 2261, R.S. 1889, authorizing "any party" to present a petition for a change of venue, required "and he shall annex thereto an affidavit to the truth of the petition, and that he has just cause to believe that he cannot have a fair trial on account of the cause alleged" and was amended in 1899 (Laws 1899, p. 110; Sec. 2261, R.S. 1889; Sec. 821, R.S. 1899) so as to permit "any party, his agent or attorney" to present said petition and make said affidavit (now Sec. 1061); that, prior to said amendment of 1899, Sec. 2261, R.S. 1889, was construed to require the affidavit to be made by the party in person (citing, among others, Huthsing v. Maus,
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,
Section 1062, R.S. 1939, differs materially from Sec. 2261, R.S. 1889, in that said Sec. 2261 explicitly contemplated thatthe 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 Sec. 1062 contains no requirement with respect to who shall make the counter affidavit, the requirement reading "the adverse party or parties shall have filed counter affidavit." Respondent makes no complaint, and we think could not successfully complain, of the filing by the attorney. Except where otherwise provided by statute, an authorized attorney having knowledge of the facts generally may make affidavits on behalf of corporate clients with respect to judicial proceedings wherein he acts as the chief functionary of the corporation.
We hold that relator's counter affidavits called for judicial action.
[4] 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 [705] 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 *1039 the Judge, matters not essential to a determination of the instant issue. Relators' pleas were overruled and these proceedings followed.
State ex rel. Pacific Mut. Life Ins. Co. v. Grimm,
Mertens v. McMahon,
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. *1040
L. P. Co. v. Sevier,
[5] 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 [706] 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,
[6] We judicially know that the Honorable John R. James is now the duly appointed, qualified, and acting judge of the Circuit Court of Jackson County, Missouri, at Independence, and that Judge Waltner is not now a judge of the Circuit Court of Jackson County. Robertson v. McFarland,
Note also remarks with respect to power and authority in some of the cases upon appeal. Douglass v. White,
The following habeas corpus proceedings: Ex parte Bedard (1891),
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.