State ex rel. Sprague v. Flournoy

SHERWOOD, J. A suit respecting a will was pending before the circuit court of Jackson county at Independence, between J. J. Yaile et al., plaintiffs, v. Olivia Sprague et ah, defendants. Plaintiffs filed an affidavit for a change of venue based on the ground of the defendants’ having an undue influence over the mind of the judge, and also over the mind of the Hon. John H. Slover: Thereupon it was shown by the affidavits of O. H. Dean and W. G. Rose, attorneys for defendants in the cause, that the two other circuit judges of the same court, to-wit, Hon. J ames Gibson and Hon. E. P. Gates, were disqualified by reason of the fact that they had been of counsel in matters of the estate of H. M. Yaile deceased. J. J. Yaile, who made the affidavit on part of plaintiffs [329] for a change of venue, admitted on cross-examination that Judges Gibson and Gates had been thus interested and were not qualified to try the cause. The following entries were made in the cause aforesaid: “Now at this day come the parties hereto by their respective attorneys. Plaintiffs now file their application for a change of venue herein for the reason that defendants have an-> undue influence over the minds of the Honorable John W. Henry and the Honorable James H. Slover, judges of this court; and defendants file the affidavit of O. H. Dean, W. G. Rose, alleging that Honorable James Gibson and Honorable Edward P. Gates, the only remaining judges of this court, have been of counsel in matters concerning the estate of H. M. Yaile, deceased, and are not qualified and refuse to try this case. And it appearing to the court that none of the judges of this court can properly proceed in this cause, and that the parties hereto, although having been given an opportunity to agree upon one of the attorneys of this court and bar to proceed and hold court for the trial of this cause, fail to agree upon such attorney. It is therefore ordered by the court, that the clerk of this court proceed to hold an election for the purpose of choosing a special judge to try this cause. “To which rulings and actions of the court the plaintiffs duly except and obtain leave of court to file their bill of exceptions thereto, within twenty days. “Thereupon the clerk of this court now proceeds to hold the election aforesaid and there being more than five attorneys of this court and bar present and the Hon. Wm. S. Elournoy, one of the attorneys present (having -the qualifications of a circuit judge) having received a majority of the votes cast, is by the clerk declared to be elected special judge to try this cause. “Now comes Hon. Wm. S. Elournoy and files his oath [330] of office as special judge herein, the same being the oath required to be taken by a special judge. “Plaintiffs now file their plea to the jurisdiction’ of said special judge to try the cause, which is by the court overruled, and to which ruling plaintiffs except.” The respondent then presided as judge at the trial of the cause, which resulted in a verdict for the defendants, sustaining the will.. In due time, plaintiffs filed motions for a new trial and in arrest of judgment; and respondent notified the attorneys on both sides that he would take up these motions in October 1, 1900. The proceedings at that time are shown by the following entry now on record in said court: “October 1, 1900. “Same Cause, Book 9, Page 563. “Now at this day come the parties hereto by their respective attorneys and plaintiffs’ motions for new trial and in arrest of. judgment being taken up and submitted to the court, and the court, being fully advised in the premises, declines to pass upon the motions for reasons that his election was illegal and void and that he has and had no jurisdiction in this cause. To which ruling and action of the court the defendants except. “Respondent further states that at this time plaintiffs’ attorney stated in open court that a deposit of ten dollars had not been made with the application for a change of venue and that plaintiffs did not make any such deposit. “After the motions for a new trial and in arrest were filed respondent concluded that his election as special judge was illegal and void because plaintiffs in said cause had a right to a change of venue out of the county and that he had no right or power' to exercise the duties of a judge in said cause and to pass upon said motions.” The above facts gathered from the return, of respondent herein, are a sufficient basis for the'following remarks: [331] Section 833, Revised Statutes 1899, provides that: “Whenever any change of venue shall be applied for in any civil cause from any circuit court of any county.......to any other county.......the party or person applying for such change of venue shall, with his application, deposit with the clerk of the circuit court the sum of ten dollars,” etc. That this sum was not only not deposited, but was not intended to be deposited, is shown by the return as already stated. It does not appear from this record whether the applica- ■ tion was for a change of venue to another county or not. If it was, it was rightfully refused because of the absence of the .$10 incident. If, on the other hand, the application was not to go out of the county, then that ends the change of venue business, in the county, as will presently appear. Two of the circuit judges, the occupant of the bench, and Hon. J. II. Slover, were disqualified by the affidavit of J. J. Yaile; and two others, Hon. Edward P. Gates and Hon. James Gibson were shown to be disqualified, also, by reason of having been of counsel. In such circumstances, it would have been a useless and ineffectual ceremony to have sent the cause before either of them; and the law would not require it to be done. And to have called either of such judges in to have sat in the case, as has been suggested, would have been equally as futile. Hnder section 822, Revised Statutes 1899, the application, if sufficient, will be granted. But if “the application is founded on the interest, prejudice or other objections to the judge, a change of venue shall not be awarded to another county if the parties shall thereupon agree upon a special judge, or if both parties request the election of a special judge; and in the latter case a special judge shall be elected as provided by law.” In this case, the parties did not agree upon a special judge, nor did both parties request the election of a special judge; so that, the order made by the circuit judge requiring the clerk to [332] “proceed to hold an election for the purpose of choosing a special judge to try this cause,” was without any warrant in section 822, supra; and this is true whether the $10 was paid or not. If paid, and the parties did not agree, etc., or both parties did not request, etc., then it was the plain duty of the circuit judge to have awarded the change of venue. But if the $10 was not paid, and not necessary to be paid, it was equally the plain duty of the circuit judge, sufficient the application, to have awarded the change. In no event, therefore, can the order of the circuit judge for the election of the special judge, be held valid. We have been referred, however, by counsel for relator, to section 1679, Revised Statutes 1899, as applicable to the present instance. We do not so regard it; that section relates to a case where a judge, from any cause is unable to hold any term or part of term of court, and fails to procure another judge to hold it, etc.; or where the judge is interested, etc., etc.; or where the judge, if in attendance, for any reason can not properly preside in any cause or causes pending in such court, and the parties to such cause or causes fail to agree to select one of the attorneys of the court to preside and hold court for the trial of cause or causes, then the attorneys, etc., may elect one of their number to hold court for the occasion. There is no such case presented here in the present proceeding. This case rests on sections 822 and 833. The plaintiffs did not comply with section 833, and they certainly did not agree upon a special judge and they certainly did not request the electiou .of a special judge. Consequently, the order authorizing the election of the special judge, was, as he himself has estimated and designated it in his return. For these reasons we hold that the special judge was clearly right in refusing to pass upon the motions for new trial and in arrest, and therefore deny the peremptory writ. All concur.