Stearns v. St. Louis & San Francisco Railway Co.

94 Mo. 317

• Court: Supreme Court of Missouri
• Decided: October 15, 1887
• Status: Published

Opinion

Black, J.

This case is here on a writ of error sued out by the plaintiff to review the action of the Greene county circuit court in sustaining a demurrer to the petition.

The petition discloses. these facts — we must take them as facts: On the fifth of December, 1877, the railroad company, the defendant in this suit, commenced an action in the Newton county circuit .court against Prank B. Stearns, the plaintiff in this suit, to recover a large sum of money, and to foreclose bis equity of redemption in some eight thousand acres of land and lots, all situated in that county. Stearns appeared and filed an answer, and the plaintiff moved to strike out a part thereof. Thereafter, and at the August term, 1878, the Newton circuit court made an order- changing the venue of the cause to the Greene county circuit court. This order, it is alleged, “was made without, and not founded upon, or pretended to be founded upon, any disability or disqualification of the judge of said Newton circuit court, on account of his being interested in or related to either party, or by having been of counsel in said case,, and without any application having been made therefor by either party to said cause, and without any consent of the parties in writing being filed in said Newton circuit court, as provided and required by law.” The Greene circuit court, upon the filing of the transcript therein, took cognizance of the cause, and sustained the motion to strike out part of the answer. Stearns appeared in that court for the special purpose of making a motion to strike the cause from the-docket for want of jurisdiction of that court. This motion being overruled, he made no further appearance, ' and thereafter the court rendered a judgment and decree in conformity to the prayer of the petition.

The plaintiff in this case- states that the defendant is using that judgment and decree to annoy and harass him in jurisdictions beyond this state, and prays that the judgment and decree be decreed to be null and void, and for naught held, and for other and further relief. There is the further allegation in ’ the present petition that the Greene county circuit court did not acquire any jurisdiction over the cause, or the subject-matter, or of the parties thereto. This averment was doubtless inserted for the purpose of indicating the pleader’s conclusion of law from the facts- stated, and can have no other or further effect, for it is but the averment of a conclusion of law. There is no assertion that the order for the change of the venue of the cause was procured by fraud, and the question is whether that order made by the Newton county circuit court is void on the face of the proceedings, as they are, pleaded in this petition.

It is by the statute made the duty of the judge to award a change of venue, without a petition therefor, when he is interested, related to either party, or has been of counsel in the cause. In other cases the order must be made on a verified petition therefor. If, however, this order is made upon a petition not verified, or otherwise defective, this order is not a nullity, it is but an irregularity. This has been the uniform ruling in such cases. Potter v. Adams Ex'rs, 24 Mo. 161; State v. Knight, 61 Mo. 373; State v. Dodson, 72 Mo. 283. And even to enable this court to review the action of the circuit court on an appeal' or writ of error prosecuted from the final judgment in the suit in which the order was made, it must appear that an objection was made and an exception saved at the time and in the court awarding the change of venue. State v. Dodson, supra; Squires v. Chillicothe, 89 Mo. 230; Keen v. Schnedler, 92 Mo. 524. And in the case of State r. Ware, 69 Mo. 332, it was distinctly ruled that the application for the change of venue of a cause constituted no part of the record, unless made so by a bill of exceptions.

The Newton county circuit court had full and complete jurisdiction of the subject-matter of that suit and of the parties thereto. It is a court of general jurisdiction, proceeding according to the course' of the common law; It had power to award a change of the venue of the cause ; and the logical result of the authorities cited is, that the order had the effect to transfer the cause to the Greene circuit court. If made without any cause existing therefor, or upon an insufficient affidavit, or on no affidavit at all, still the order is not a nullity. These are but errors and irregularities, available only to the opposing party by writ of error or appeal sued out from the final judgment in the cause in which the errors were made. They are of no avail whatever to the party against whom they were made in a collateral proceeding like this. It follows that the Greene county circuit court had jurisdiction of the suit and of the parties thereto, and the judgment is not void or voidable in a suit like this one, there being no charge of fraud.

We are cited to the cases of Bray v. Marshall, 66 Mo. 123, and Snitjer v. Downing, 80 Mo. 588. In these cases the record disclosed no order transferring the cause, and hence they are not in point here. We find nothing in the case of Fields v. Maloney, 78 Mo. 172, in conflict with what we have ruled in the present case. Besides this, all the judges now present concur in the dissenting opinion filed in that case.

The above conclusions render it unnecessary to consider the other questions discussed in the briefs, and the judgment is, therefore, affirmed.

Ray, J., absent; the ■other judges concur.