203 Mo. 175 | Mo. | 1907
In September, 1905, the relators and other landowners in the counties of Bollinger, Cape Girardeau, Dunklin, New Madrid, Pemiscot, Scott and Stoddard filed in the office of the clerk of the circuit court of New Madrid county “Articles of Association” for the formation and incorporation of a
The articles of association and the petition so filed conform to all the requirements of the said statute and act before mentioned, and all the non-petitioning landowners of the district either entered their appearance, were personally served or duly notified by publication, as provided in the statute.'
It is alleged in the articles of association and the petition that New Madrid county had within its boundaries a greater portion of the land proposed to be embraced in said drainage district than has any of the other counties mentioned, and for that reason the suit was begun in that county. The summons was returnable the first day of the March term, 1905, of that court.
On the 21st of March, 1906, respondents, Louis and Mary H. G-. Houck, filed objections to the incorporation of the said drainage district, which were of great length.
No further order was made by the court at that time, but, by consent- of the parties, the hearing of the objections was continued until July 7,1906.
On said last day respondents, .Louis and Mary Houck, filed in said cause an application for a change of venue, which, omitting the caption, is as follows:
“Now come Louis Houck and Mary H. G. Houck, objectors and defendants in the above-entitled cause, and respectfully state that they cannot have a fair*182 and impartial trial of said canse in the circuit court of New Madrid county, Missouri, for the reason that the opposite parties in said cause, to-wit, plaintiffs and petitioners therein for the incorporation and' establishment of said drainage district, have an undue influence over the mind of the Honorable Henry O. Riley, the judge of said court, and for the further reason that said judge is biased and prejudiced against the objectors and defendants and in favor of the said plaintiffs and petitioners in said cause;
‘ ‘ That information and knowledge of said bias and prejudice on the part of said judge and of the said undue influence exercised over his mind came to your petitioners for this change of venue after the last adjournment of this court and after the filing of their objections herein against the incorporation and establishment of said drainage district, and that this application for a change of venue is made as soon as practicable after the filing of said objections.
“Wherefore, the defendants and objectors pray the court to change the venue of said cause and awafd the same to some other court, where the causes complained of do not exist. ’ ’
The application was signed by said Louis Houck, and duly sworn to on July 3, 190-6.
The relators then filed a motion to strike from the files of the court the respondent’s application for a change of . venue, and assigned as reasons therefor, among others, the following:
“1. That the filing of said pretended application was improvident and without any statutory authority or right.
“2. That the statute under which these proceedings were instituted for the incorporation of a drainage district makes no provision for a change of venue from the court where the proceedings are instituted, and the right to a change of venue is purely statutory, and does*183 not exist, except in those instances where the statute authorizes it.
“3. That the pretended application for a change of venue is insufficient in form, and does not comply with the statute in that it does not state when the alleged information came to the knowledge of Louis' Houck.
“4. That the pretended application was filed with? out giving notice to the adverse party.
“5. That the statute, under which these proceedings were instituted, authorizing the incorporation of a drainage district, makes no provision for the granting of a change of venue, hut on the contrary provides that the ‘objections’ shall be heard before the court in a ‘ summary manner, and without unnecessary delay, ’ and that this application for a change, of venue was manifestly made for the purpose of delay. ’ ’
The relator’s motion to strike out was at.once taken up by the court, and after it had been seen and heard was by the court overruled, to which ruling and action of the court the relators duly excepted at the time.
Thereupon, the court took up the application of the respondents, Louis and Mary H. G. Houck, and announced from the bench that said application would be sustained, and the venue in said proceeding (the formation and incorporation of said drainage district), would be changed from New Madrid county to some other county.
To this action of the circuit court the relators objected and excepted at the time.
Thereupon, the relators requested said circuit court to withhold its order and judgment in granting a change of venue and sending said proceedings for the incorporation of a drainage district to some other county until relators could be heard in this court, and ascertain whether or not the respondents, Louis and Mary
Thereupon, relators instituted this proceeding, in this court, praying for a writ of prohibition, prohibiting the Hon. Henry C. Eiley, judge of the New Madrid Circuit Court, from granting said change of venue, and prohibiting Louis and Mary Houck from further prosecuting their said application for a chang'é. This court issued a provisional writ, requiring respondents to show. cause why a permanent writ should not issue. The answer and returns of the respondents substantially admit the facts before stated, and insist:
First. That the action of said judge was within the limits of his lawful jurisdiction, and that he had a right to take up and dispose of said application for a change of venue in the same manner, and in the same way, as though the proceedings for the incorporation and information of a drainage district was a “civil suit’’ within the meaning of section 818, Revised Statutes 1899.
Second. That if.the respondent judge committed error in holding that a change of venue would lie in a proceeding relating to the formation of a drainage district, it was reviewable on appeal, and that prohibition for that reason would not lie.
Respondents Louis and Mary Houck in their separate return set up many other reasons why they should be discharged, which go to the merits of the case and have no bearing upon the issues presented here, hnd for that reason they will not be further noticed.
OPINION.
I. There are but two points presented in the case for the court’s determination, and they are: whether or not the circuit court of New Madrid county was
We will consider these questions in the order mentioned.
If this proceeding is a civil suit within the meaning of section 818 of the Revised Statutes of Missouri, 1899, regarding changes of venue in civil suits, then the circuit .court of New Madrid county was not exceeding its lawful jurisdiction when it announced its purpose to grant the change of venue to some other county in the State, and in that case the provisional writ should he quashed; hut if, upon the other hand, such a proceeding as this is not such a suit within the meaning of said section, then said court was at that time transcending its jurisdiction, and the provisional writ’ should be made permanent.
The respondents contend for the affirmative of this proposition, while the relators maintain the negative thereof. The issue thus joined requires us first to determine what is a “civil suit” within the meaning of the statute.
' Mr. Webster says that the word civil means (5), “Relating to rights and remedies sought by action or suit.”
" Civil remedy (Law), “That given to a person injured by action, as opposed to a criminal prosecution.”
Civil suit, “A suit for a private claim or injury.”
Bouvier defines the word “civil” in these words: “In contradistinction to criminal to indicate the private rights and remedies of men as members of the community in contrast to those which are public and relate to the government; thus, we speak of civil process and
‘ ‘ Civil Action. In Practice. ’ ’
“In the Civil Law.” “A personal action which is instituted to compel payment, or the doing some other thing which is purely civil.”
‘ ‘ At Common Law. ” “ An action which has for its object the recovery of private or civil rights, or compensation for their infraction.” [1 Bouvier Law Dict. (Rawle’s Revision), p. 329.]
The word “suit” in practice means, “An action.” “It is more general than ‘action,’ which is almost exclusively applied to law and denotes any legal proceeding of a civil kind brought by one person against another. ’ ’
“ ‘Suit’ is a generic term of comprehensive signification, and applies to any proceeding in a court of justice in which the plaintiff pursues, in such' court, the remedy which the law affords him for the redress of any injury, or the recovery of a right.” [2 Bouvier’s Law Dict. (Rawle’s Revision), p. 1065.]
Mr. Webster defines the word “ease” to be, “A state of facts involving a question for discussion or decision; especially a cause or suit in court. ’ ’
Bouvier defines the word to mean, “A question contended before a court of justice. An action or suit at law or in equity.” [1 Bouvier’s Law Dict. (Rawle’s Rev.), p. 288.]
Mr. Webster says, 4. (Law), the word “suit” means, ‘ ‘ The attempt to gain an end by legal process; an action or process for the recovery of a right or claim; legal application to a court of justice; prosecution of right before auy tribunal; as a civil suit; a criminal suit; a suit in chancery.”
It will be seen from an examination of these various definitions that the phrases, “civil case” and “civil
This court has repeatedly held that in the construction of a statute, “the words of the law are to be taken in their ordinary, usual and natural meaning.” [Henry & C. Co. v. Evans, 97 Mo. 55; McFarland v. Railroad, 94 Mo. App. 340.]
- The same rule of construction applies to a constitutional provision.
‘ ‘ The general and primary rule of construction requires that words, when there is nothing to indicate that they are used in a particular sense, shall be given their ordinary or popular meaning.” [Smith v. Railroad, 143 Mo. l. c. 37, 38; Martin v. Hunter, 14 U. S. 326.]
It might not be out of place here to state that the authorities before cited attach to the word “suit” a broader and more comprehensive meaning than is given to the word “action” or “ease;” and it is of some ■significance that the broader term is used in the change of venue statute rather than the one employed in the Constitution regarding the jurisdiction of the circuit court. • Section 22 of article 6 of the Constitution of 1875, stripped of all passages unimportant in this inquiry, provides that, “The circuit court shall have jurisdiction over all criminal cases not otherwise provided for by law; exclusive original jurisdiction in all ‘civil cases’ not otherwise provided for.” The'evident intent was to confer upon litigants the right to a change of venue in cases pending in courts other than the cir
The wording of that statute, in so far as it is material in this case, is as follows: “A change of venue may be awarded in any civil suit to any court of record for any of the following causes.”
This question seems to have never come before this court for adjudication before, but it has received attention at the hands of other courts of this country.
In a proceeding instituted by the common council of Kansas City, before the mayor, to inquire and find the value of the property taken for the purpose of widening a street, and to assess the benefits caused by the improvement so made upon the surrounding property, the jury found the value of the property taken to be $7,305, and assessed the benefits at $12,325. The case was appealed to the circuit court of Jackson county. • A petition for removal to the United States Circuit Court was filed in said court, because a Federal question was involved, which was resisted, because, among other reasons assigned, such a proceeding was not removable under the United States statute which provides for the removal of certain suits from the State to the United States courts. The Supreme Court of the United States, in passing upon that question, said:
“This controversy is to all intents and purposes ‘a suit.’ ... We think that the case was removable to that court under the act of March 3, 1875.” [Pacific Railroad Removal Cases, 115 U. S. 5, 6, 17, 23.]
In Indiana an act of the Legislature created a “superior court,” and gave to it “concurrent jurisdiction with the circuit court in all cases of appeal from
In another case in Indiana, Bass and Gordon filed their petition in the circuit court, praying for the location and construction of a ditch or drain under the
According to the definitions and the foregoing authorities it is clearly deducible that the words “civil cases” as used in the Constitution and “civil suits” as employed in our civil code mean the proceeding, actions, or suits by which private rights are protected, enforced, or their violation redressed. We are, therefore, of the opinion that a proceeding under our statute for the incorporation of a drainage district is so far a civil suit that the section in relation to changes of venue is applicable to such proceedings. This conclusion is supported by the language of Judge Black in a condemnation proceeding for a right of way for a railroad, which is as follows:
“It is true the statute makes no specific provision for raising these or like issues, but it is utterly unreasonable to say that the defendant must.be notified when the petition will be heard, and yet, when he appears, he cannot be heard to show that the petitioner has no right to condemn the particular property for the alleged use.” [Railroad v. Railroad, 94 Mo. l. c. 543.] This case shows to what great length this court will go in order to apply the provision of the civil code to this class of special proceedings.
One of the most, if not the most, important steps in these drainage proceedings is the incorporation and the establishment of its boundaries. Under the broad and liberal provision of the drainage act very serious injury might be inflicted upon the property-owners if they were denied a fair or impartial trial at this stage of the proceeding.
II. “The object and purpose of a writ of prohibition is to prevent a court of peculiar, limited or inferior jurisdiction from assuming jurisdiction of a matter beyond its legal cognizance.” [2 Bailey on Jurisdiction, sec. 449; Smith v. Whitney, 116 U. S. 167; 16 Ency. Plead. & Prac., p. 1093.]
The writ is equally appropriate and available to keep such a coni I; within the boundaries of its lawful power in given cases, no less than to prevent its cognizance of causes not consigned to its jurisdiction. [State ex rel. v. Slover, 126 Mo. 652; State ex rel. v. Withrow, 133 Mo. 500; 2 Bailey on Jurisdiction, sec. 447; Const. of Mo., 1875, sec. 3, art. 6; Railroad v. Wear, 135 Mo. 230; State ex rel. v. Spencer, 166 Mo. 271.]
It is not the purpose of the writ to correct errors of the trial court. If the application for a change of venue was not in conformity to the mandates of the statute, or if the proper notice was not given, then the
For the reasons before stated, the permanent writ is denied, and respondents are discharged from the rule.