Penfield v. Vaughan

SHEEWOOD, P. J. — Plaintiffs brought suit in equity and then applied in vacation to Hon. E. Eield of Lafayette ■county for a change of venue, on account of prejudice of the judge against them; this application was formally sufficient, and due notice of which appears in the following order made ■on the presentation of the application. This order, made in vacation, ordered a change of venue of the cause on the ground ■stated, to the circuit court of the county of Saline, which was in the same judicial circuit. The date of this order was November 22, 1898, and Judge Eield’s term of office expired •on the thirty-first of December of that year. As recited in the order, $10 was deposited with the clerk, as required by the statute. On the coming of the cause to the circuit court of Saline ■county, the defendants severally demurred to the petition. [374] The plaintiffs herein then filed a motion for "an order nunc pro tunc, sustaining the application theretofore made, awarding a change, of venue to some county in the adjoining or next adjoining circuit, etc., alleging as grounds therefor: “1. Because the circuit court of Saline county, Mis-" souri, has no jurisdiction to hear, try and determine this cause. “2. Because the order heretofore made, 'removing this' cause from Lafayette county to Saline county, Missouri, is in violation of the statute in such cases made and provided, and is null and void.” This motion was denied, and plaintiffs excepted. Plaintiffs thereupon filed a motion for rehearing, supported by affidavits, showing that there was no election of a special judge, nor agreements of the parties upon a special judge, while the cause was pending in the Lafayette Circuit Court, and that over the objections of plaintiffs the cause was sent by the order of the then judge to the circuit court of Saline county. Section 822, Revised Statutes 1899, makes provision that where reasonable notice'is given, and the application is sufficient, a change of yenue shall be awarded to' some county in the same, adjoining or next adjoining circuit, etc., where the causes complained of do not exist. And the section makes further provision that where the application is founded on the prejudice of the judge, etc., a change of venue shall not be awarded to another county if the parties agree upon a special judge or if they request, the election of a special judge. This being the case, inasmuch as the parties neither elected, nor agreed on, a special judge, it was the very plain duty of Judge Eiei.d to award a change of Venue to' some county in an adjoining circuit, where the cause complained of did not exist, to-wit, his alleged prejudice', in each county of his then circuit;, so that he had no more authority to award a change of venue to the Saline Circuit Court than he had to refuse altogether to award a change. [375] Under the ruling announced in State ex rel. v. Eloumoy, 160 Mo. 324, unless the parties agree upon, or elect a special judge, the cause must be sent to another circuit, where the application is based on the disqualification of the regular judge. And the fact that Judge EitslNs term of office expired on December 31, 1898, did not enlarge his statutory authority in this regard; he was bound to send the cause to- some- county in an adjoining circuit, etc., where the cause complained of did not exist; but such cause did exist in Saline county. It is urged, however, that plaintiffs should have excepted to the action of the judge in awarding a change of venue to- Saline county and filed their bill of exceptions; the case of State ex rel. v. McKee, 150 Mo. 233, is cited in support of that statement. The case, however, on which that case was bottomed, arose and was disposed of, while the Knox Circuit Court was in session, and, consequently, opportunity was afforded for excepting and filing a bill of exceptions. Not so, however, in the case at bar, since exceptions can not be taken nor a bill preserving the same be presented, signed and filed before a judge in vacation. But inasmuch as this could not be done, it was allowable for plaintiffs to present affidavits showing just what occurred in Lafayette county when the change of venue was awarded. And the transcript filed in the Saline Circuit Court, to-wit, the order changing the- venue to that court, showed on its face that the alleged prejudice of the judge was- the ground of the order, and, consequently,, it was the duty of that judge to have awarded the change- to some county in an adjoining circuit. In these circumstances, it was the duty of the trial court in Saline county to have entered an order remanding the cause to the circuit court of Lafayette county. In consequence of these views, judgment reversed and cause remanded. All concur.