State ex rel. Ward v. Lubke

1. Venue, Change of, in St. Louis City. — An application for a change of venue from the St. Louis city circuit court must he made to the judge at special term, and not to the general term, unless it is based on prejudice of all the judges. 2. -Judicial Discretion — Appeal.—Whether the application for a change of venue is timely, or otherwise, is a question addressed to the sound discretion of the court. If it be claimed that there was an excuse for delay, depending upon particular facts, the exercise of discretion is reviewable on appeal, and not by writ of prohibition.

Application for a writ of prohibition. Even if it did appear from the alternative writ that this court conld not have appellate jurisdiction of the cause below, this is not a proceeding to prohibit the prosecution of that cause. The Supreme Court has often intimated that, in such cases as the present, the proper course is to first apply to the court of appeals. In the case of Bennett v. MeOaffery, 28 Mo. App. 220, this court took jurisdiction of the cause, which was an application to the circuit court to compel a justice of the peace to certify a cause up to that court because the title to realty had been put in issue. Even if it did appear from the alternative writ that the cause was not one triable by a jury, it does not appear that it is not one in which an accounting would have to be taken, and, therefore, a referee selected from the' inhabitants of the city of St. Louis. The alternative writ shows that this action was commenced on January 20, 1888, and, therefore, returnable to the February term of the circuit court. The writ further shows that said cause was .assigned to Room 1, and no steps taken therein up to the time of this application, except to overrule the first .application for a change of venue ; that the plaintiffs in the suit prevented Catherine Ward from doing anything further therein by engaging her in a negotiation for a .settlement; that, as soon as this was broken off, she next morning presented this application for a change of venue. The writ shows that the respondent did consider this application, and overruled it on the ground that it was not presented in time. He must, therefore, have decided that it was properly presented to him. Moreover, a reading of the section of the statute referred to shows that it refers only to cases in which a change of venue from the city of St. Louis is asked on the ground of some objection to two or more of the judges of the circuit court. The application here in question was made in accordance with the act of February 8, 1881, which governs this matter.- Session Acts of 1881, pp. 176, .177. , This court will not interpose by writs of this character in causes wherein the court of appeals has - not appellate jurisdiction. State v. Seay, 23 Mo. App. 623. The relator here makes no allegations from which it can even be presumed that the cause in question is one within the jurisdiction of this court. The writ does not disclose that the cause, wherein the application for change of venue was made, was one triable by a jury ; this fact must affirmatively appear,' for if the cause was in equity and not for jury trial no change of venue on the ground of undue influence over the inhabitants should have been granted. Lee v. Smith, 84 Mo. 304. The law requires that the application be made as soon as practicable after receiving information of the undue influence complained of. A party cannot be permitted to oust the court of jurisdiction after having voluntarily accepted it, after knowledge of the undue influence. State ex rel. v. Maylock, 82 Mo. 455. Whether the application was made as soon as practicable after information was received is a question resting in the sound discretion of the trial court. State ex rel. v. Maylock, sv/pra. Section 8 of the laws relating to St. Louis circuit court, as-compiled in 2 Revised Statutes, of 1879, p. 1505, makes provision for changes of venue from that court. Doubtless some of the provisions of this section are modified by section 3742 of Revised Statutes, 1879, as amended by the act of February 8, 1881 (Laws of 1881, p. 176), but not with respect to the provision that “every application, for change of venue shall be made to said' circuit court at general term.” This court, with respect to the action of trial courts upon applications for change of venue, and this court and the Supreme Court, witlr respect to other matters reviewable upon appeal, have' declined to interfere by writs of prohibition or mandamus. Ex parte Chambers, 10 Mo. App. 240, and oases there citen; State ex rel. «. Lubke, 15 Mo. App. 152 ; s. o., 85 Mo. 338; State ex rel. v. Megown, 89 Mo. 156 ; Bowman's case, 67 Mo. 146.