State ex rel. Morrison v. Stanton, 235 Mo. 222

235 Mo. 222 | Mo. | 1911

BROWN, J.

— This, is an original action in this court to prohibit respondent as special judge of the circuit court of Perry county from exercising jurisdiction of and making further orders in a proceeding instituted by H. K. Spencer and others to- organize Drainage District No. 1 of Perry county, Missouri.

The petition to organize the above named drainage district was originally filed in the county court of Perry county, where all the overflowed lands intended to be' included in the drainage district are situated. Said county court, upon the filing of the petition, appointed a civil engineer and three other persons as viewers to examine the line and route of the proposed ditches, and make a report to the court, as required by section 5580, Revised Statutes 19091. The clerk of said county court also gave notice of the pendency of said petition and'the time when same would be heard, as required by section 5581, Revised Statutes 1909.

Upon proof of publication of the aforesaid notice, and the coming in of the report of the viewers and engineer, the county court approved said report, and made an order organizing the district.

After the proceeding had been thus far advanced in the county court, that court discovered that one of its judges was an owner of land situated within the proposed drainage district, and that another judge of - said court was a first cousin of a landowner of said drainage district. Whereupon, said county court adjug’ed itself disqualified to act in the premises, and entered of record an order setting aside its former order organizing the district and transferred the venue of the proceedings to the circuit court of Perry county under the provisions of section 4082, Revised Statutes 1909.

When the petition and bond of the parties seeking to organize the drainage district were filed in the circuit court, it was found that Hon. Charles A. Killian, judge of said court, was also an' owner of land within said proposed drainage district; whereupon said judge made an order adjudging himself disqualified to- hear the petition, and directed the clerk of said circuit court to hold an election to choose a special judge to hear and determine same and all other matters connected with the drainage of land within the proposed district. This election resulted in the choice of respondent as special judge; who, after taking the oath of office required by law, proceeded to approve the bond tendered by Spencer et. al., petitioners, assumed jurisdiction of the cause, and appointed three viewers and a civil engineer to view and lay out the plans for the proposed drainage district.

Said special judge also ordered and caused to be given notice of the pendency of said petition, as required by section 5581, Revised Statutes 1909.

On the date designated by said notice, said special judge received the report of the viewers and engineer theretofore appointed, and entered a decree organizing the drainage district.

Thereafter, the aforesaid viewers and engineer filed with the special judge their final report, assessing the benefits which the lands in the district would receive by the proposed drainage, together with the estimated damages to said lands from the condemnation of rights of way for ditches through same.

Said special judge (respondent herein) caused notice to be given of such final report, as required by section 5587, Revised Statutes 1909', and after said notice was duly published, the relator filed in said circuit court of Perry county a motion challenging the jurisdiction of respondent to further proceed with said matter of draining the lands within said drainage district, on the followng grounds:

1. That the county court of Perry county possessed no power to transfer to the circuit court the proceeding to organize the proposed drainage district;

2. That respondent was not legally elected special judge to hear and determine the petition of Spencer and others to organize the aforesaid drainage district.

Said motion was overruled; whereupon relator instituted this action against respondent.

OPINION.

I. The contention of relator that although the county court of Perry county is disqualified to hear and determine the petition for the proposed drainage district, yet said court had no power under section 4082', Revised Statutes 19091, to certify said proceedings to the circuit court, for the alleged reason that county courts are given exclusive jurisdiction of proceedings to drain lands, uuder article 4, chapter 41, Revised Statutes 1909', is not supported by the law. C'ounty courts have exclusive jurisdiction of a great number of proceedings'; but that can furnish no reason why such courts may not be ousted of such jurisdiction when for a, statutory reason they are disqualified to hear same.

The policy of our law is that no person shall be forced to try a cause before a judge or court who is personally interested in the property or matter in controversy, or related to one so interested; and when no change of venue is provided for, the statute authorizing' the transfer of the cause to a disinterested tribunal should be liberally construed. [Meddis v. Kenney, 176 Mo. 200, l. c. 208.]

Relator contends that county courts are possessed of peculiar knowledge of the needs for the drainage. of overflowed lands within their respective counties, and therefore, it could not have been the intention of the Legislature to permit the supervision of such matters by circuit courts, which (he alleges) would not be SO' well qualified to. determine issues that may arise in respect to the drainage of such overflowed lands.

Relator’s contention must be overruled for two reasons: (1) The Legislature has authorized circuit courts to incorporate drainage districts and to hear •and determine all controversies that may arise in carrying into effect such drainage enterprises; thus, giving parties desiring to drain overflowed lands the choice of securing such drainage through either the county courts: or circuit courts. (2) The action of county courts in organizing drainage districts must be based upon evidence and reports filed with such county courts and not upon the personal knowledge of the judges of such courts; consequently, no reason can be seen why a circuit court could not understand the evidence and apply the law to a drainage proposition with the same facility as a county court.

Relator will not be deprived of any constitutonal right to ascertain by a jury the damages to- his lands by the condemnation through same of a right of way fo.r the proposed drainage ditch, or any other right which he could have asserted had the proceeding remained in the county court. The circuit court having acquired jurisdiction of the proceeding to drain relator’s: lands and other lands in that locality, will take all the steps and do all matters and things to consummate such drainage which the county court would have possessed power to do. had it not found itself disqualified to act in the premises.

II. The second contention of relator, that respondent was not and conld not have been legally elected to sit as special judge to hear and determine the drainage proceedings, possesses no merit whatever. Before the cause was certified to the circuit court, the clerk of the county court had already given notice of the pendency of the petition, as required by section 5581, Revised Statutes 1909, reciting the place of beginning, route and terminus of the proposed drainage ditch, which notice necessarily informed relator that said ditch would pass through his land; and the fact that the county court was disqualified to hear the proceeding did not invalidate the notice, nor excuse the relator from appearing in said county court and formally making himself a party to said proceeding by filing his remonstrance, as provided by section 5583, Revised Statutes 1909. The notice above mentioned would have been valid even if the clerk of the county court had also been an interested party. [Huff v. Shepard, 58 Mo. 242, l. c. 245.] Relator as an owner of lands through which said ditch will be constructed, was made a defendant by said petition and notice the same as if he had been specifically named therein; and it was his own fault and neglect that he did not become an active defendant before the cause was certified to the circuit court. [Huling v. Kaw Valley Railway & Improvement Company, 130 U. S. 559; Ballard v. Hunter, 204 U. S. 241.]

The further argument of relator that the election of respondent as special judge was illegal and void because the. parties to the action were not given an opportunity to agree upon a special judge, must be disregarded, because the provision of section 3961, Revised Statutes 1909, in respect to allowing the parties to the action to agree on a special judge' to try tbe cause, can only apply when both plaintiff and defendant have entered their appearance. It only requires a mild application of the “rule of reason” to understand that the circuit court should only be required to grant the parties to the action an opportunity to agree upon a special judge when all the parties have entered their appearance.

In a ca.se like the one at bar, when the defendant was duly notified of the proceeding and through his own neglect failed to enter his appearance and file his answer or remonstrance at the time he ought to have filed' same, he cannot be heard to complain that he was not given an opportunity to agree with the plaintiffs upon a competent lawyer to sit as a special judge and try the cause, before the regular judge ordered, the election of a special judge.

It follows that relator herein is possessed of full jurisdiction to hear and determine all matters connected with the proposed drainage district, and that the preliminary writ of prohibition heretofore issued herein should be quashed and that the absolute writ of prohibition applied for should be denied.

It is so ordered.

Válliant', C. J., and Kennish, Ferriss, Woodson, Lamm and Graves, JJ., concur.