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State ex rel. v. Staten.

The Legislature in 1909 (Laws 1909, p. 727) repealed a large portion of the law as it then stood relating to roads and bridges, and enacted new provisions in lieu thereof. Section 9419, Revised Statutes 1899, was very materially changed by the above legislation, as will appear upon a comparison of section. 10440, Revised Statutes 1909, with said section. It is evident that the lawmaking power contemplated in the above change that proceedings to open roads should be facilitated rather than retarded. This case presents a practical illustration of the necessity for refusing a writ of certiorari on the record disclosed herein.

The relator has shown no interest in the subjectmatter of this litigation; waited until more than seven months after the road had been ordered opened, before applying for the writ; and incurs no liability, except for costs. If he had been successful here and the proceedings of the county court had been quashed, all the efforts of the community interested in this matter would have come to naught. On the other hand, if relator, under the facts disclosed by the record, had been required to test the validity of the county court proceedings by appeal, he would have been required to perfect his appeal within ten days from the date of final judgment in said proceeding. He would likewise have been required to give a bond, etc.

In addition, however, to the foregoing, in order that there may be no unnecessary delay in cases of appeal, it is provided that the circuit court shall proceed to hear and determine the case anew. In proceedings by appeal the errors, if any, committed by the county court, may be corrected when the case reaches the circuit court, where it will be tried anew. On the other hand, if the proceedings by certiorari show want of jurisdiction upon the part of the county

State ex rel. v. Staten.

court, it would nullify all the proceedings before such court.

We therefore hold, that on the facts disclosed by this record, the writ of certiorari was improperly issued and properly dismissed by the trial court.

Record
Proper of
County
Court.

V. It may be contended that the petition, remonstrance and final judgment of the county court ordering the road opened, constituted the record proper of said court; and that this part of the proceedings should be considered as a part of the respondents' return, without any reference to the other documents and proceedings certified to the circuit court. Without undertaking to determine this question, on count of the conclusions heretofore reached, as it is not necessary to do so, we would suggest that the final judgment rendered by the county court covers all the jurisdictional facts affirmatively, and validates any portion of the record which is silent as to such matters.

In the very able and exhaustive opinion of Judge STURGIS of the Springfield Court of Appeals, in State ex rel. v. Ross, 177 Mo. App. 1. c. 230, it is said:

"It has also been ruled that it is sufficient in certiorari proceedings that the jurisdiction of the inferior tribunal, with which alone the review court has to deal, appears by any part of the record. [State v. Schneider, 47 Mo. App. 669, 676; State ex rel. v. Mayor of Neosho, 57 Mo. App. 192, 198.]"

Upon a full consideration of all the matters before us, we have reached the conclusion that the judgment below was for the right parties, and it is accordingly affirmed.

Brown, C., concurs in result.

PER CURIAM. The foregoing opinion of RAILEY, C., is adopted as the opinion of the court. All the judges concur, Blair, J., in the result.

State ex rel. v. Foard.

THE STATE ex rel. G. I. REEDER et al. and INTERRIVER DRAINAGE DISTRICT v. J. P. FOARD, Judge of Circuit Court.

1. PROHIBITION:

In Banc, July 3, 1916.

Motion for Judgment on Pleadings: Facts Taken as True. In prohibition, where respondent has filed a return to the preliminary rule to show cause why the writ should not go, and relator has filed a motion for judgment on the pleadings, the facts are to be gathered from the return in so far as the facts therein stated contravene the statements of relator's petition. In such case the motion will be taken as admitting all facts well pleaded in the return.

2. CHANGE OF VENUE: Drainage District: Exceptors for Self and Others. It is immaterial whether the affidavit for a change of venue alleging that the judge is disqualified because an interested party, filed by an exceptor to the report of the commissioners appointed to assess damages and benefits for a drainage district, is made for himself alone or for himself and others. If the affidavit is good as to the one exceptor and is timely filed, it precludes further action by the judge. This is true because the drainage law contemplates that all exceptions to the report of the commissioners as to damages and benefits should be considered by the same court, and that the one court will hear the exceptions and modify the report, and after modification confirm it by one final order of confirmation.

3.

4.

ers.

:

-: Untimely Filed: After Report of CommissionThe law contemplates that the organization of a drainage district is one continuous proceeding until ich time as the report of the commissioners is confirmed. Therefore, an application for a change of venue, charging that the judge is an owner of land within the district and being an interested party is prejudiced, filed after exceptions to the report of the commissioners has been filed, is too late, and cannot be allowed. To be in time it must be made before the beginning of the trial.

:

: Prejudice of Judge: Interested Party: No Exceptions. An affidavit for a change of venue, filed by an exceptor to the commissioners' report, charging that the regular

State ex rel. v. Foard.

judge, since the organization of the drainage district embracing 127,000 acres, has become the owner of sixty acres therein, but containing no averment that there is any exception that the assessment of benefits against the judge's land is either too high or too low, does not show that anything is pening before him as to his own land, and does ot charge such interest as disqualifies him to hear the exceptions and modify and confirm the report.

Prohibition.

WRIT DENIED.

Herbert H. Freer, Oliver & Oliver and L. R. Thomason for relators.

(1) Any interest, "though it be ever so small and trifling," disqualifies the judge. Any order or judgment on the hearing of the exceptions to the commissioners' report that might be entered by the respondent would directly affect his pecuniary interest. Such being true, it was the duty of the respondent to have voluntarily called in some other judge who was not interested. Sec. 1928, R. S. 1909; Priddy v. MacKenzie, 205 Mo. 193; State ex rel. v. Smith, 176 Mo. 97; Dimes v. Canal Co., 16 Eng. L. & Eq. 63, 3 H. L. Co. 759; Earl of Derby Case (1686), 12 Coke, 114; Coke on Littleton, sec. 212; Hesketh v. Braddock, 3 Burr, 1847; Findley v. Smith, 42 W. Va. 299; State v. Call, 41 Fla. 442; Ex parte Cromwell, 144 Ala. 497; Meyer v. San Diego, 121 Cal. 102; Heilbron v. Campbell, 23 Pac. (Cal.) 122; Nalle v. Austin, 85 Tex. 520; State v. Cisco, 33 S. W. 244; Wagon Works v. Melton, 125 S. W. (Ky.) 291; Woodmen of the World v. Hale, 120 S. W. (Tex.) 539; Morrisey v. Gray, 117 Pac. 442; Railroad v. Call, 145 S. W. (Tex.) 1098; 23 Cyc. 575; 12 Am. & Eng. Ency. Law, p. 40; Pierce v. Atwood, 13 Mass. 339; Stockwell v. Town Board, 22 Mich. 345; Mining Co. v. Kieser, 58 Cal. 315; Priddy v. MacKenzie, 205 Mo. 195. All

State ex rel. v. Foard.

exceptions filed by said landowners to the report of the commissioners in assessing benefits are tried by the court sitting as a jury. The decreasing of the assessed benefits or the refusal to lower the assessed benefits upon other landowners will increase or decrease the amount of taxes levied and assessed upon the respondent's lands in exact proportion as the changes are made, and, therefore, respondent is pecuniarily and directly interested. Any, even the slightest, pecuniary interest in the result renders the judge incompetent to sit. Steamboat Co. v. Livingston, 12 Cowan, 724; Hawes v. Humphrey, 20 Am. Dec. 381; Peck v. Freeholders, 20 N. J. L. 457. (2) The filing of the application for the change of venue duly verified and in proper form, made it mandatory on the respondent to grant the application, and call in another judge to hear the further proceedings. Douglas v. White, 134 Mo. 233; Gee v. St. Louis Ry. Co., 140 Mo. 318; State ex rel. v. Clenton, 128 Mo. App. 304; Railway v. Fowler, 113 Mo. 469; Dowling v. Allen & Co., 88 Mo. 300. (3) The granting of the application carries with it the entire case. The entire number of exceptions must be heard by one judge -to permit a number of judges to hear the various exceptions and modify the commissioners' report as to them might seem proper would result in having the report measured by as many different rules as there were judges, and the ultimate result would be a modified report wholly out of proportion and unfair to the landowners. The whole intent of the drainage statute is to keep the hearing of the exceptions in one forum and before a judge who is not disqualified. Art. 1, chap. 41, R. S. 1909; Drainage District v. Tomlinson, 245 Mo. 11; State ex rel. v. Sheppard, 245 Mo. 64; Drainage Dist. v. Richardson, 237 Mo. 64; State ex rel. v. Riley, 203 Mo. 191; State ex rel. v. Haley, 99 Mo. 152; Fears v. Riley, 148 Mo. 61; Laws 1913, p. 241.

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