State ex rel. Ward v. Lubke

Rombatjer, J., delivered the opinion of the court. An alternative writ was issued in this case stating in substance that certain parties filed their petition against relator in the circuit court of St. Louis city, January 20, 1888, the object of the suit being the foreclosure of a mortgage, and the statement of an account; that the petition was assigned to room 1 of the court, in which the respondent presides as judge; that on the next succeeding Monday (January 22), the relator presented her petition to the judge, in due form, asking a change of venue to some other county, on the ground that the inhabitants of the city of St. Louis were prejudiced against her ; that this application was- overruled ; that, on Tuesday, January 31, the relator filed another petition for change of venue in due form, asking a change of venue to some other circuit judge in the city, on the: [558] ground that the opposite party had an undue influence over the mind of the judge (the respondent), which application was overruled on the ground that it was not made in time. The writ commands the respondent to desist from further proceedings in said suit or show cause, etc. To this writ the respondent demurs. The grounds of demurrer are, that the application should have been presented to the court in general term, and not to respondent, and was properly overruled for that reason. Also, that the relator has a complete remedy by appeal, and prohibition will not lie. The first ground of demurrer is not well taken. Under- the statute as it now stands (Acts 1881, pp. 176, 177), applications for change of venue, unless they are based on the ground that all the judges of the court are prejudiced against the applicant, have to be presented .to the judge at special term. The second ground of demurrer is well taken. The relator’s petition for a change of venue states that knowledge of such undue influence came to her about the last part of week before last, that is, at least as early as January 19. No reason is shown why, on January 22, when she presented her application on the first ground hereinabove stated, she did not present her application on the grounds which she now assigns, and which, at that time, according to her own statement, were fully known to her. Applications of this character, so far as the question is concerned whether -their presentation is timely, are addressed to the sound discretion of the court. State to use v. Matlock, 82 Mo. 457. To determine in the first instance its own jurisdiction, so far as the same rests upon contested facts, is the legitimate exercise of the judicial powers of every tribunal, and though it may err in such determination, its so doing is not a usurpation of judicial authority, but error, for which the proper remedy of the party aggrieved is by appeal. State ex rel. v. Seay, 23 Mo. App. 630. In the case at [559] bar, there was either no excuse for the delay, as is fairly inferable from some of the allegations of the writ, and then the action of the court in overruling the application is not only a discretionary exercise, but also a proper exercise of the court’s judicial powers, or else there was some excuse for the delay depending upon peculiar facts, and then the action of the court was a discretionary exercise of its powers reviewable on appeal, but not reviewable in this proceeding. In either view of the case the demurrer must be sustained.