State Ex Rel. Wolfner v. Harris , 312 Mo. 209 ( 1925 )

This cause was submitted at the April term, 1925, but due to the illness and subsequent death of the member of the court to whom it was originally assigned the preparation of an opinion has been delayed until now.

This is an original proceeding in prohibition. Briefly, the important facts necessary to an understanding of this cause are as follows:

On the first day of the November term, 1924, of the Circuit Court of Cole County, Missouri, the Prosecuting Attorney of Cole County filed in the circuit court an information charging relator herein with the offense of exhibiting a false paper to the Deputy Commissioner of Finance of the State of Missouri. On the same day relator herein filed his motion for a change of venue, alleging prejudice of the circuit judge and ofthe inhabitants of Cole County, and asking that the venue of the cause be changed to some circuit where said prejudice did not exist. Thereafter, the Circuit Court of Cole County granted and sustained the motion for a change of venue and ordered the cause sent to the Callaway County Circuit Court in another judicial circuit, to which order no objection was made or exception saved by the relator herein. In due course the transcript in the cause was filed in the Circuit Court of Callaway County and docketed for trial. Thereafter, and before a trial, relator herein filed in said court a motion to remand the cause to the Circuit Court of Cole County, upon the ground that the Callaway County Circuit Court was without jurisdiction to try the cause, which motion was overruled. Thereafter, the relator herein applied to this court for a writ to stay further proceedings on the ground that the Circuit Court of Callaway County was without jurisdiction to try and determine the cause and our preliminary rule in prohibition issued.

It is contended that the Circuit Court of Callaway County has no jurisdiction to try the cause for the reason that the Circuit Court of Cole County, under Section 3973, page 206, Laws 1921, which reads in part as follows: ". . . if the application shall allege prejudice of the inhabitants of more than one county in the circuit in which the case is pending, the court may, upon proof of the allegations as herein provided for, order the case sent to some county in the same or some other circuit where such causes do not exist," was without authority, where the motion alleged prejudice of the inhabitants of Cole County, to transfer the cause to another county and circuit and that the order was a nullity and void.

That the order granting the change of venue was a nullity and void we do not agree for the reason that the Circuit Court of Cole County had jurisdiction of the offense and of the relator herein and had the power to grant a change of venue. The order was at most irregular or erroneous, but not absolutely void or a nullity. [State ex rel. Herriford v. McKee,150 Mo. 233; State v. Lynn, 169 Mo. 664, 670; Levin v. Met. St. Ry. Co., 140 Mo. 624, 630; Coffey v. City of Carthage,200 Mo. 616, 623.]

Nothing is better settled in the practice of this State than that the only way to remedy the irregular or erroneous awarding of a change of venue is by saving exceptions at the time the change is ordered and in the court in which ordered. [Potter v. Adams, 24 Mo. 159, 161; State v. Gamble, 119 Mo. 427, 430; State ex rel. Herriford v. McKee, 150 Mo. 233, 238; State v. Lynn,169 Mo. 664, 671; Levin v. Met. St. Ry. Co., 140 Mo. 624, 630; Coffey v. City of Carthage, 200 Mo. 616, 623; State v. Allen,267 Mo. 49, 57, 183 S.W. 327.]

There is no pretense that exceptions were saved in the manner aforesaid, when the change was ordered.

For the reasons stated our preliminary writ is quashed. All concur.