Woodrow v. Younger

61 Mo. 395 | Mo. | 1875

Napton, Judge,

delivered the opinion of the court.

This was a suit against the curator of an estate, finally disposed of in the circuit court of Greene county. In September, 1870, the circuit court of Greene county, referred the matter to a referee, who at the May term, 1871, reported the evidence and his conclusion on it. After this report was filed and exceptions to it were made, but before the court gave any opinion on it, the defendant filed his application for a change of venue, on the ground that the judge was prejudiced, and was under the influence of the opposite party.

The application was denied, and its refusal constitutes the only point in the case. In Ex parte Cox, (10 Mo., 742) this court issued a mandamus upon a court, which allowed a change of venue after verdict, and it is conceded that that decision must control the present case, unless there is a material distinction between the verdict of a jury and the report of a referee, so far as the right to a change of venue is concerned ; but in Franz vs. Dietrick, (49 Mo., 95) it was held that the report of a referee, in stating an account, is equivalent to a special verdict. It is clear that the change of venue asked, if granted, would have involved the necessity of another reference, and, consequently, the introduction of new evidence, and so in this way virtually allowed a new trial, without regard to the results of the first investigation or the opinion of the court upon it, and thus suits could be indefinitely protracted.

As the statute has not been changed in this respect since the decision in Ex parte Cox, we must, in conformity with that opinion, affirm the judgment.

Judge Sherwood was of counsel and did not sit. The other judges concur.