Opinion
July 2, 1940.
1. PAROLES: Collateral Actions. Where the petitioner in prohibition was indicted for embezzlement and disqualified the regular circuit judge and thereafter pleaded guilty before a special judge who paroled him and the regular judge thereafter set aside the parole and on habeas corpus to the Court of Appeals it ruled that the judgment of the regular judge in revoking the parole should be set aside and remanded the petitioner to the custody of the sheriff for further proceeding, the Court of Appeals thereby ruled only as it was authorized to rule under the law.
2. PAROLES: Habeas Corpus. Where defendant was paroled by a special judge, which parole was set aside by the regular judge and is pending, a motion to set aside the judgment granting the parole is an independent action in equity and the defendant may, under the statute, disqualify the regular judge to sit on the hearing of such motion.
PRELIMINARY RULE MADE ABSOLUTE.
David E. Blanton and W.P. Wilkerson for relator..
(1) Prohibition will lie when an officer threatens to act beyond or outside of his jurisdiction and is designed to prevent the exercise of judicial power in cases where there is want of jurisdiction in the court to exercise such authority. State ex rel. v. McQuillin, 262 Mo. 266; State ex rel. v. Pratt, 183 Mo. App. 213; State ex rel. v. Klene, 207 S.W. 496; State ex rel. Fowler v. Calvird, 93 S.W.2d 1106. (2) The Supreme Court may by prohibition restrain an inferior tribunal from exceeding its jurisdiction, or keep a court within the limits of its powers in any matter, or from acting in a cause in which it is without jurisdiction. State ex rel. v. Latshaw, 237 S.W. 770, 291 Mo. 592; State ex rel. v. Seehorn, 246 Mo. 585; State ex rel. v. Wiethaupt, 238 Mo. 162; State ex rel. v. Fort, 210 Mo. 512. (3) Where the record of a judgment shows on its face that the court did not have authority to grant the particular relief which it did grant, the judgment is void and subject to collateral attack. Gray v. Clements, 286 Mo. 100, 227 S.W. 113; Charles v. White, 214 Mo. 208. (4) If a judgment determines a matter not in issue and adjudicates rights of the parties in a manner not warranted by the pleadings, that portion of the judgment is void and may be collaterally attacked. Raney v. Home Ins. Co., 246 S.W. 57, 213 Mo. App. 1; Burns v. Ames Realty Co., 31 S.W.2d 276; Charles v. White, 214 Mo. 208. (5) The granting of a parole, whether it be deemed a conditional suspension of the sentence or a conditional parole, is no part of the trial of the cause which culminates in a judgment of conviction, or is it in any sense an incident thereto. State ex rel. v. Montgomery, 297 S.W. 31. (6) In construing statutes, all statutes applicable to subject involved must be read and construed together and, if possible, harmonized. State ex rel. Halsey v. Clayton, 226 Mo. 302; Little River Drain. Dist. v. Lassater, 29 S.W.2d 718, 325 Mo. 493; State ex rel. v. Smith, 67 S.W.2d 50, 334 Mo. 653; State v. Naylor, 40 S.W.2d 1084, 328 Mo. 335. (7) The Springfield Court of Appeals is without jurisdiction to hear and determine writs of habeas corpus, the subject matter of which is not in its appellate jurisdiction, and is without jurisdiction to exercise superintending control over the lower courts in such cases. Art. VI, Secs. 4, 5, Amend. of 1884; Art. VI, Secs. 3, 12, Const. 1875; State ex rel. Rogers v. Rombauer, 105 Mo. 103; State ex rel. Blakemore v. Rombauer, 101 Mo. 499; State ex rel. Sale v. Nortoni, 201 Mo. 1; State ex rel. Wurdeman v. Reynolds, 275 Mo. 113, 204 S.W. 1093; Duraflor Products Co. v. Pearcy, 29 S.W.2d 88; State ex rel. Ghan v. Gideon, 119 S.W.2d 89.
Ray B. Lucas for respondent.
(1) Certiorari is the proper remedy to pursue to have the Supreme Court review the opinion of an inferior court to determine whether or not the inferior court has exceeded its jurisdiction. Failure of relator to pursue such remedy deprives relator from seeking a review of the Court of Appeals' decision by subsequent application for prohibition to prevent the mandate of the Court of Appeals being executed. State ex rel. Barker v. Wurdeman, 163 S.W. 849, 254 Mo. 561; Mo. Const., Art. VI, Secs. 2, 3; Mo. Const., 1884 Amend., Sec. 8; State ex rel. Evans v. Broaddus, 149 S.W. 473, 245 Mo. 123; State ex rel. Manning v. Smith, 86 S.W. 867, 188 Mo. 167; State ex rel. Walker v. Dobson, 36 S.W. 238, 135 Mo. 1. (2) The Supreme Court will not draw to itself jurisdiction in the first instance on prohibition to determine the merits of controversies lodged in inferior courts, except on a clear showing of lack of jurisdiction as a matter of law, as distinguished from matter of fact, and that ordinary remedies by appeal, error, or certiorari are absent. Since certiorari could have been maintained, there is no occasion now for this court to grant the writ of prohibition. State ex rel. Warde v. McQuillin, 262 Mo. 256, 171 S.W. 72. (3) The granting of a writ of prohibition by this court is discretionary, and relator is not entitled to the writ as a matter of right. A writ of prohibition should be granted only when there are no other remedies available to relator. (4) The Courts of Appeals of Missouri have jurisdiction to grant writs of habeas corpus in felony cases. Art. VI, Secs. 3, 12, Mo. Const.; Sec. 4, Amendment 1884, Art. VI, Mo. Const.; Sec. 1907, R.S. 1929; In re McDonald, 19 Mo. App. 370; Workman v. Turner, 283 S.W. 61; Child Sav. Institute v. Knobel, 37 S.W.2d 920; State ex rel. v. Mueller, 59 S.W.2d 719. (5) When the regular judge is disqualified in a criminal case, he thereafter has no power or authority to act further in the case, except to direct the substitution of another judge in his place. R.S. 1929, secs. 3648, 3649, 3650; State v. Myers, 14 S.W.2d 447; State v. McLain, 18 S.W.2d 16; State v. Creighton, 52 S.W.2d 556. (6) When the regular judge has been properly disqualified, he is without jurisdiction to pass upon a motion to revoke a parole which had been granted by the special judge, and any order made by the regular judge in the case thereafter is void. Thompson v. Sanders, 70 S.W.2d 1051; State ex rel. Attorney General v. Westhues, 286 S.W. 396; In re Heffron, 179 Mo. App. 639; In re Woolridge, 30 Mo. App. 612; Dusenberg v. Rudolph, 30 S.W.2d 94.
Original action in prohibition. Relator seeks to prohibit a regular judge from calling a special judge to sit on the hearing of a motion to set aside a judgment granting a parole. In substance the facts follow: J. Sherwood Smith, under indictment for embezzlement of public funds, disqualified the circuit judge. A special judge was selected. Smith pleaded guilty. On said plea the special judge sentenced him to the penitentiary. On the same day Smith filed a petition for parole. Eleven of the twelve grand jurors who returned the indictment recommended a parole. The special judge paroled Smith.
In about three weeks the prosecuting attorney filed a motion to set aside the judgment granting the parole. The motion alleged, among other things, that Smith told the grand jurors that he (Smith) had paid all of his several shortages to the county and city; that he also told them that the prosecuting attorney would consent to a parole for that reason; that Smith made said statements to induce the grand jurors to recommend a parole; that said statements influenced the grand jurors; that all of said statements were false and untrue, and thereby a fraud had been perpetrated on the court. Wherefore, he prayed the court to set aside the judgment paroling Smith.
Smith was served with process. Thereupon he filed a motion challenging the jurisdiction of the regular judge to sit on the hearing of the motion to set aside the judgment granting the parole, for the reason he had been disqualified to sit as judge in the criminal case (State v. Smith) in which Smith was charged with embezzlement. The regular judge overruled the motion challenging his jurisdiction. In due course evidence was heard by the regular judge on the motion to set aside the judgment. On submission of the cause he sustained the motion, set aside said judgment, and ordered Smith committed to the penitentiary under the sentence on his plea of guilty to the indictment.
In ruling the motion to set aside the judgment granting the parole, the regular judge found that said judgment was procured by fraud practiced upon the court in the very act of obtaining the judgment.
On the petition of Smith, the Springfield Court of Appeals issued a writ of habeas corpus. The sheriff made return to the writ, alleging that he had lawful custody of Smith under said commitment. Smith replied to the return by challenging the jurisdiction of the regular judge to hear the motion to set aside the judgment granting the parole for the reason above stated. The Court of Appeals ruled the question of the jurisdiction of the regular judge on the admitted facts and under certain sections of the parole statute. It reasoned as follows:
"We cannot escape the conclusion that where the regular judge has been disqualified, as was conceded to be the case here, he had no right to act in any way in connection with the case, except in the matter of calling the case to the attention of the special judge, or in selecting some other judge according to law to pass on the matter. It is unreasonable to think that where the judge had been disqualified under the provisions of our statutes, that he should assume to revoke a parole granted by a special judge, and that revocation being for cause; as stated by the regular judge in his decree of revocation as hereinbefore shown. We think the Legislature in 1937 by its act above referred to (Laws 1937, p. 403, sec. 10, Mo. Stat. Ann., sec. 8334-10, p. 6180), has helped to clarify the situation, so that there can be no question but that the regular judge in this instance acted without authority in attempting to revoke the parole and that his acts in so doing were void and of no effect. It is our conclusion that our Writ should stand and that so far as the order of the regular judge revoking the parole is concerned, that order should be set aside and for naught held, and it is so ordered. But in this case there is a petition on file with the clerk of the Circuit Court of Scott County praying for the revocation of the parole of J. Sherwood Smith. This petition should be passed on by the Special Judge in this case, or by some other judge legally selected, and this cause should be remanded to be considered as herein suggested. It is so ordered." [Italics ours. Ex parte Smith, 119 S.W.2d 65, l.c. 73.]
If the above ruling of the Court of Appeals be taken literally, it ruled the habeas corpus action as if for review on appeal. For reasons satisfactory to said court, the judgment of the regular judge revoking the parole was set aside. In the instant collateral action, we will assume that it was authorized to set aside said judgment. Even so, the said court was authorized only to discharge the prisoner from the custody of the sheriff under the commitment and remand him to the custody of the sheriff for further proceedings in the circuit court in accordance with law. [State ex rel. Gentry, Atty. Gen. et al., v. Westhues et al., 315 Mo. 672, 286 S.W. 396, l.c. 399; Sec. 1468, R.S. 1929.] In this situation we construe the above paragraph of the opinion of the Court of Appeals to rule only as it was authorized to rule under the law.
Thus it appears that the action to revoke the parole is pending in the circuit court. We think the parole statutes are without application to the facts under consideration. The said motion is an independent action in equity to set aside the judgment granting the parole for alleged fraud on the part of Smith prior to the parole, which fraud was practiced upon the court in the very act of obtaining the judgment granting the parole. If the motion to set aside the judgment granting the parole is an independent action, and we so rule, the defendant Smith may, under the statute, disqualify the regular judge to sit on the hearing of said motion.
In ruling the instant action it must be understood that no consideration has been given to either the sufficiency of the petition or the evidence in the action to set aside said judgment. Furthermore, it must be understood that the ruling in the instant action does not interfere with the statutory jurisdiction of a circuit judge to grant paroles or revoke the same under the statute.
The preliminary rule should be made absolute. It is so ordered. All concur.