Opinion
April 12, 1946. Rehearing Denied. May 2, 1946.
1. — Appeal and Error. The fact that appellant called transcript on appeal a bill of exceptions was not ground for dismissal where it contained everything required in a transcript on appeal, notwithstanding it contained matters not necessary on an appeal.
2. — Appeal and Error. Points not argued on appeal are abandoned.
3. — Continuance — Criminal Law. Courts are required to continue civil and criminal cases pending therein, upon affidavit in proper form stating that attorney of party filing affidavit is member of General Assembly attending session thereof and that his appearance at trial is necessary, and courts have no authority to refuse continuance on ground that affidavit was fraudulent and filed simply to postpone hearing.
4. — Continuance. Trial court upon filing of affidavit for continuance because counsel is attending session of Legislature has jurisdiction to determine whether affidavit is filed in proper form.
5. — Prohibition. Prohibition did not lie, where justice of the peace in unlawful detainer action refused to grant continuance upon defendants' legislative affidavit stating that one of counsel was member of General Assembly attending session thereof, and entered judgment against defendants, since if justice erroneously exercised jurisdiction, error was committed reviewable by appeal.
6. — Prohibition. Prohibition cannot be employed to fill office of an appeal.
7. — Prohibition. Prohibition cannot be used when other remedy at law exists.
Appeal from the Circuit Court of Lawrence County. — Hon. Emory E. Smith, Judge.
REVERSED AND REMANDED ( with directions).
Wm. J.B. Myres and Edward V. Sweeney for appellant.
After the appellant filed his return to the preliminary writ of prohibition, the respondents herein filed a motion for judgment on the pleadings. That motion was overruled. The respondents declined to reply, objected to the introduction of any evidence, and offered no evidence on their behalf. Therefore, all allegations in appellant's return must be taken as true. State ex rel. Farmer's Exchange Bank of Gallatin, Daviess County et al. v. Beals, Judge et al., 227 Mo. App. 643, 55 S.W.2d 1005; State ex rel. Anderson v. Kirkland, Probate Judge et al., 55 S.W.2d 697; State ex rel. American Pigment Chemical Co. v. Shields, 141 S.W. 585. The justice court had jurisdiction of the parties and the subject-matter in the action between M.E. England and Omah England v. Fred H. Kyger and Mrs. Fred H. Kyger. The mere filing of a "Legislative Affidavit" by the Kygers did not oust the justice court of its jurisdiction. Sec. 1089, R.S. Mo. 1939; State v. Myers, 179 S.W.2d 72; State ex rel. Ford v. Hogan, 324 Mo. 1130, 27 S.W.2d 21; Carpenter v. Alton Railroad Company, 148 S.W.2d 68. The action of the justice court in rendering judgment and overruling the motion to set same aside, even if improper, was only error. The Kygers had a full and adequate remedy at law by appeal to correct that error, if any. They made no attempt to exercise this adequate remedy at law. Therefore the circuit court committed grave error in making the preliminary writ of prohibition absolute. State v. Myers, 179 S.W.2d 72; Delaney v. Police Court of Kansas City et al., 167 Mo. 667, 67 S.W. 589; State ex rel. Henry et al. v. Cracraft et al., 237 Mo. App. 194, 168 S.W.2d 953.
H.A. Gardner and James E. Sater for respondents.
By reason of filing the affidavit that a member of the Legislature was an attorney in said cause, and was in actual attendance at the session thereof, etc., the court was divested of jurisdiction to render judgment in said cause; and it was likewise divested of jurisdiction to issue process to enforce said judgment. Section 96, Civil Code 1943, Session Acts 383; State v. Clark, 267 S.W. 413; State v. Myers, 179 S.W.2d 72. That part of the section of the statute directly applicable to this question is as follows: "And on the filing of such affidavit, the court shall continue such suit and any and all motions or other proceedings therein, of every kind and nature, including the taking of depositions, and thereupon no trial or other proceedings, of any kind or nature shall be had therein until the adjournment or recess for twenty days or more of the general assembly, nor for ten days thereafter. Such affidavit shall be sufficient, if made at any time during the session of the general assembly, showing that at the time of making the same, such party, attorney, solicitor or counsel is in actual attendance upon such session of the general assembly." Counsel for appellant, in attempting to quote this section, very conveniently omitted the above portion thereof, and under this section it is clear that the court has no jurisdiction to issue process to enforce the judgment, which he admits that he is threatening to do. This court in the case of State v. Clark, supra, held that the granting of a continuance was mandatory. The court said: "Legislature evidently intended to make it mandatory upon the trial court to grant a continuance when a proper affidavit was filed under what is now Sec. 1388, R.S. 1919. Counter-affidavits have no place under this section. We think this statute is a wholesome one. It is well known that any attorney must to some extent sacrifice his practice to serve as a member of the Legislature. The reason for the mandatory character of this statute is apparent, and our comment could not make it more wholesome." In the Myers case, supra, The Supreme Court approved the holding in the Clark case, and in so doing, said: "The State contends that the order of the trial court disclosed that it did not appear to the court that the attendance of Mr. Farrar was necessary to a fair and proper trial. We are of the opinion that our statute does not permit the trial court to decide that question. Note that it says that upon the filing of such affidavit the court shall continue such suit. . . ." Appellant cites the Myers case, but there is no way for counsel to properly read this case and get any consolation therefrom. Counsel also quotes from the Oklahoma decisions, as cited in the Myers case, but the court did not follow the Oklahoma decisions, but on the contrary said: "Our statute, section 1089, supra, does not permit such an interpretation. We cannot write an exception into the statute." In the Myers case, the State contended, as the counsel for appellant, that the decisions under the change of venue statute were controlling, but this theory was directly exploded by the Supreme Court on the motion for rehearing, in which it said: "We do not think the cases cited construing the change of venue statute, are controlling, because the purpose of the statute under consideration is materially different from the change of venue statute. We think respondent has overlooked the latter portion of section 1089, which reads as follows: `Such affidavit shall be sufficient, if made at any time during the session of the general assembly, showing that at the time of making the same, such party, attorney, solicitor or counsel is in actual attendance upon such session of the general assembly.'" Counsel cites a number of cases in respect to change of venue in civil cases, but these cases are not applicable. Aside from the Supreme Court decision in the Myers case, the change of venue statute in respect to suits in circuit courts, is quite different from this statute. No provision is made that the court is divested of jurisdiction to further act in the case. Had the counsel been interested in elucidating this question they could have cited the statute in respect to change of venue before a justice of the peace. Section 2641, in respect to change of venue from justice of the peace, provides: "When such affidavit for a change of venue shall be filed, the Justice shall have no jurisdiction in the cause except to grant such change of venue." Under this section our courts have held that the judgment of the justice is void when rendered in face of the application for a change of venue. In the case of Doniphan v. Transue, 226 S.W. 635, the plaintiff instituted his suit before a justice of the peace. The defendant filed an application for a change of venue. The plaintiff induced the justice to dismiss said cause. Later the justice decided he was wrong and sent the case to another justice of the peace, and the court said: "It is apparent that the attempt of Justice Brown to dismiss the cause after the affidavit was filed, was of no force and effect." In State ex rel. Hazel v. Watkins, 253 S.W. 781, l.c. 783, the court said: "The order of appellant (justice of peace) attempting to send the cause to G.G. Bowen, a Justice of the Peace of Cooter Township was a nullity and the cause remains the same as if no order had been made. After the filing of an affidavit for a change of venue, a judgment for plaintiff was a nullity" (This is a justice of the peace case.) Baskowitz v. Guthrie, 99 Mo. App. 304. It is well settled in this State that the writ of prohibition is available to keep the court within the limits of its power or from exceeding its jurisdiction, or to prevent it from proceeding after it has lost jurisdiction. State ex rel. Buckingham Hotel Co. v. Kimmel, 183 S.W. 651; State ex rel. Gary Realty Company v. Hall, 17 S.W.2d 935; State ex rel. Fowler et al. v. Calvird, 93 S.W.2d 1108. This question seems to be so well settled that it will seem to be useless to cite other authorities. In the case of State ex rel. Gary Realty Company v. Hall, supra, the Supreme Court approved the following: "In modern practice, if the lower court is clearly without jurisdiction at all, either of the person or subject-matter, or of something collateral or incidental thereto, or, having jurisdiction, exceeds it, or insists in proceeding after it has lost jurisdiction, the writ will issue." In the case of State ex rel. v. Kimmel, supra, the court said: "But the case before us is one involving the question of usurpation of judicial authority, i.e., the exercise of jurisdiction in excess of respondent's judicial power and authority. The extraordinary remedy invoked is therefore appropriate and under the facts disclosed we see no good reason why it should be denied relator. So long as anything remains to be done to carry a judgment into effect the writ may go, and it may take on such form as the exigencies of the situation may demand." In the case of State ex rel. Fowler et al. v. Calvird, supra, the court said: "The court and respondent as judge thereof had no jurisdiction to render the judgment. Where such is the case, prohibition is always a proper remedy and is always available. The main object of this proceedings is to prevent the issuance of an execution against relators. If the judgment be void for want of jurisdiction in the court or the judge thereof to render it, there is no good reason why the enforcement of such judgment should not be prohibited and why our writ of prohibition is not available and should not be issued for that purpose." After the filing of the legislative affidavit the justice of the peace had no further jurisdiction, could not render a valid judgment; neither could he issue process to enforce it; and the proper remedy is by writ of prohibition. The judgment, being void, no appeal is permitted and it will be noted in the Calvird case, supra, the writ was made permanent to prevent the circuit judge from enforcing his void judgment.
This is an action in prohibition. The first thing for consideration is respondents' motion to dismiss the appeal of appellant.
The burden of such motion is that appellant called the transcript on appeal a "Bill of Exceptions," instead of a transcript, and inserted unnecessary matters therein. We have examined the so-called "Bill of Exceptions" and find that it contains everything required in a transcript on appeal, and seems to have been timely filed. It is true, that the so-called "Bill of Exceptions" contains matters not required to be filed to secure appellate review; but it does contain everything required in a transcript on appeal. We do not feel that, because appellant has called his filing a "Bill of Exceptions" and inserted therein matters not required in a transcript on appeal, these things should brand the transcript as insufficient.
It is true that the bill of exceptions, as formerly termed, has been abolished and only a transcript on appeal, which contains matters formerly shown by a bill of exceptions, is now required. If appellant has inserted matters not required in a transcript on appeal, this may be of interest in a proper court on a question of costs, if that question is raised; but we do not feel that an appellant should be deprived of his appeal simply because he has improperly called his transcript on appeal a "Bill of Exceptions," and has inserted matters therein not necessary on an appeal. The motion to dismiss the appeal is overruled, and we will proceed to the merits of the appeal.
On January 3, 1946, respondents, then plaintiffs, filed in the circuit court their petition, stating that appellant, then defendant, was a justice of the peace of Pierce Township, Lawrence County, Missouri, and that one M.E. England and Omah England filed before defendant a suit against plaintiffs for unlawful detainer and for damages for such detention, and that on October 12, 1945, plaintiffs filed with defendant an affidavit stating that a member of the General Assembly, then in session, was an attorney in said suit, and that said attorney was in attendance upon said General Assembly, and that his appearance at the trial before defendant was necessary, and asked for a continuance of the suit before defendant, in accordance with the laws of Missouri for 1943, page 383, Section 96; and that on October 15, 1945, the defendant rendered judgment in favor of plaintiff, in said suit before him, for possession of the property involved and for damages in the sum of $250, and costs of suit; that said defendant overruled a motion to set aside such judgment and threatened to issue execution on such judgment.
Plaintiffs, respondents here, contended that said justice of the peace acted in excess of his jurisdiction, because of the filing of such affidavit. Plaintiffs contended also that the office of justice of the peace had been abolished by the Constitution adopted February 27, 1945, but respondents did not argue the last point here, or in their brief, and we will treat that contention as abandoned, and address ourselves solely to the effect of the affidavit filed with the justice of the peace, and whether a writ of prohibition was properly issued.
The trial judge issued a preliminary writ of prohibition on November 19, 1945. On the hearing, defendant, now appellant, asked for a directed verdict, which was denied by the trial judge, and, after such denial, and on November 28, 1945, made the preliminary writ permanent. On the same day, defendant, appellant here, filed his motion to set aside such judgment and permanent writ, and this motion seems to have been overruled on the same day. On that day, to-wit, November 28, 1945, defendant gave notice that he appealed to this Court, and, on November 29, 1945, appears a memorandum of the clerk of the Circuit Court of Lawrence County, Missouri, that he had mailed a copy of defendant's notice of appeal to the attorneys for plaintiffs, and, on December 21, 1945, said clerk certified to the correctness of such notice of appeal and service on respondents' attorney.
On January 5, 1946, as appears from a memorandum of our clerk, and his file mark thereon, such transcript, called a "Bill of Exceptions" was filed in this Court. The case is thus before us.
There can be no question, in the light of the statute and of the decisions of the Supreme Court and the several Courts of Appeals, that defendant had no right to proceed at that time in the case before him, after such affidavit, if in proper form, was filed. Respondents cite the following statute and cases, and we use them, as we regard them as entirely sufficient, to-wit: Section 96, Civil Code, 1943 Session Acts, 383; State v. Clark, 267 S.W. 413; State v. Myers, 179 S.W.2d 72.
The Legislature has seen fit to require all courts to continue civil and criminal cases pending therein, when such affidavit is filed, and the courts of this State have time and again held that such an affidavit stays the hand of all courts of this State. It was not for defendant, appellant here, to say that such affidavit was fraudulent and filed simply to postpone hearing of the case before him, whatever defendant or counsel may have thought. We understand that counsel for appellant do not now argue otherwise.
But appellant contends that prohibition was not the proper remedy, and that appeal in the case before the justice of the peace was the only remedy respondents had and that the trial judge erred in granting the preliminary writ and later in making such writ permanent. On the other hand, respondents contend that the filing of such affidavit deprived appellant of all jurisdiction in the case, previously pending before him, and, for that reason, prohibition is the proper remedy.
A reading of Section 96, Laws of 1943, page 383, does not indicate that even a proper legislative affidavit deprives a court of all jurisdiction, for said section simply provides that the filing of such affidavit "shall be a sufficient cause for a continuance." If the court should be deprived of jurisdiction by the filing of such affidavit, it could not even make an order of continuance. Hence, respondents must mean that such court is not permanently deprived of jurisdiction, but simply has no further jurisdiction to proceed to trial at that time. In other words, the court before whom said case has been pending is temporarily deprived of jurisdiction.
It cannot well be contended, in view of Section 2835, Revised Statutes Mo. 1939, that justice of the peace courts had no jurisdiction in unlawful detainer suits. So, it is evident that appellant, as justice of the peace of Lawrence County, had original jurisdiction in unlawful detainer cases in that county. Was he deprived, even temporarily, of such jurisdiction by the filing of such affidavit? We understand that respondents only seek to justify the issuance of the writ of prohibition on the ground that defendant was acting in excess of his jurisdiction, when he entered and sought to enforce his judgment.
Appellant cites Carpenter v. Alton R. Co., 148 S.W.2d 68. True, in that case, an application for change of venue was filed and not acted upon. We are unable to see any difference between an application for change of venue, such as was filed in the Carpenter case (Sec. 1062, R.S. 1939), and an affidavit that one of the counsel was a member of the General Assembly and in attendance thereon. In either case, the trial court could proceed no further in the case, but has the right to pass on the sufficiency of such application or affidavit. In sending the case to some other court, or in continuing the case until counsel no longer is prevented from attending, for the reason stated, the court acts judicially and within its jurisdiction.
In the Carpenter case, Judge SPERRY, speaking for the Kansas City Court of Appeals, said:
"The mere filing of an application for change of venue does not oust the court of jurisdiction. The court had jurisdiction to grant the change, or to deny it. The court may rule erroneously on the question; but it is within the jurisdiction of a court to err. [Incorporation of Little Tarkio Drainage District v. Richardson, 227 Mo. 252, l.c. 260, 126 S.W. 1021; State ex rel. Ford v. Hogan, 324 Mo. 1130, l.c. 1140, 27 S.W.2d 21.] In this case the court should have ruled the application before proceeding to hear the case."
So, in this case, the filing of an affidavit stating that one of the counsel was a member of the General Assembly, then in session, and which such attorney was required to attend, did not deprive the court of jurisdiction to determine whether or not such affidavit conformed to the statute, and if it did, to enter an order continuing the case until such time as such cause was removed. In such case, the court acted within its jurisdiction, and, if such jurisdiction was erroneously exercised, error was committed, which, upon appeal, would result in a reversal of any judgment thereafter rendered.
Respondents could have appealed from the judgment entered by appellant. He should have continued the case before him on the filing of a legislative affidavit. That respondents did not appeal to the circuit court from the judgment entered against them by appellant, does not change the situation in the least. Respondents had the right to appeal, and if they did not exercise that right within the time allowed by law (Secs. 2726 and 2727, R.S. Mo. 1939), they have no one but themselves to blame. Assuming that the legislative affidavit was in proper form, the defendants should have granted a continuance and his failure to do so was error, which could have been corrected on appeal to the circuit court, or possibly respondents might have maintained mandamus. But prohibition cannot be employed to fill the office of an appeal. Nor can it be used when other adequate remedy at law exists. [State ex rel. Sexton v. Roehrig, 323 Mo. 515, 19 S.W.2d 626; State ex rel. Caron v. Dearing, 291 Mo. 169, 176, 236 S.W. 629; State v. Brumley, 53 Mo. App. 126.]
Respondents cite State ex rel. Buckingham Hotel Co. v. Kimmel, 183 S.W. 651. We have examined that case. Judge KIMMEL was undertaking to make an order which he had no jurisdiction to make and was prohibited by the St. Louis Court of Appeals. There the court said:
"The writ cannot be made to perform the functions merely of an appeal or writ of error. Its purpose is not to review and correct errors but to prevent the usurpation of judicial authority.
"But the case before us is one involving the question of usurpation of judicial authority; i.e., the exercise of jurisdiction in excess of respondent's judicial power and authority. The extraordinary remedy invoked is therefore appropriate, and under the facts disclosed we see no good reason why it should be denied relator."
Respondents cite and quote from State ex rel. Gary Realty Co. v. Hall, 322 Mo. 1118, 17 S.W.2d 935. Judge GENTRY, speaking for the Missouri Supreme Court en banc, quoted the part quoted by respondents in their brief; but respondents neglected to quote further, as follows: "`If there is no other adequate remedy in the ordinary course of law, and timely objection has been made by law to the jurisdiction.'"
In the Hall case, Judge HALL had granted a motion covering the same ground that was covered or could have been covered in numerous cases. Judge GENTRY, quoting from an earlier case, said:
"`When rights have been fully and finally determined, there should be an end to their litigation. Final judgments should be final, and the courts rendering them should not be trifled with. The writ of prohibition is available to keep the court within the limits of its power in a particular proceeding, as it is to prevent the exercise of jurisdiction over a cause not given by law to its consideration.' [State ex rel. Knisely v. Board of Trustees of Y.W.C.A., 268 Mo. l.c. 168, 186 S.W. 681; State ex rel. Fabrico v. Johnson, 293 Mo. 302, 239 S.W. 844.] We, therefore, hold that prohibition is proper in a matter such as this."
We do not think the foregoing case is any authority for the position taken by respondents. Judges WOODSON, FARIS, RAGLAND and WHITE, had previously passed on every phase of the dispute between the Gary Realty Company and Swinney, and it was to prevent further appeals that a writ of prohibition was granted.
In the case of State ex rel. Fowler et al. v. Calvird, 93 S.W.2d 1106, cited by respondents, Judge CALVIRD undertook to make an order in a case he had previously transferred to another circuit court on change of venue, and thereby deprived himself of all jurisdiction in the case, and, of course, the Kansas City Court of Appeals stopped him by a writ of prohibition.
REYNOLDS, J., said: "Such court and the respondent as judge thereof were, by the order transferring the cause upon change of venue, wholly divested of any jurisdiction of said cause. Upon such change of venue, such cause and the subject-matter thereof, together with all the parties thereto and all matters incident thereto, passed to the jurisdiction of the circuit court of Johnson county. [Ex parte Haley, 99 Mo. 150, 12 S.W. 667.] Not a shred of jurisdiction over the cause or any of its incidents remained in the jurisdiction of the circuit court of Henry county or under the jurisdiction of the respondent judge."
It is our conclusion that a temporary writ of prohibition should not have been issued and that the trial court erred in issuing such writ and making same permanent thereafter. The judgment below should be reversed and the cause remanded with directions to the trial court to set aside both its temporary writ of prohibition and its permanent writ of prohibition and to deny respondents' application therefor. It is so ordered.
Fulbright, P.J., and Vandeventer, J., concur.