author: "WILLIAMS, J.

text:
    THE STATE ex rel. GRANITE BITUMINOUS PAVING COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals.
    In Banc,
    June 14, 1919.
    CONFLICT IN OPINIONS: Beneficiary Party to Suit on Special Tax Bill: No Conflict. The Supreme Court has never decided that in a suit on a special tax bill for a street improvement the cestui que trust in.a deed of trust existing at the time the tax bill was issued is not the owner and a necessary party within the meaning of the • clause of the St. Louis Charter providing that “said tax bills shall be and become a lien upon the property charged therewith and may be collected of the owner of the land” and that un- ’ less proceedings are commended to collect such special tax bills within two years of their maturity the lien thereof “shall be destroyed and of no effect against the land charged therewith;” and, hence, a decision of the Court of Appeals, holding that under said charter provisions the beneficiary named in the deed of trust is an “owner of the land” and a necessary party, and if not • made a party within two years the lien is destroyed, although the suit is timely brought against both the mortgagor and the trustee, is not in conflict with any prior decision of the Supreme Court, and therefore, whether such decision be right or wrong, the Supreme Court does not, under the constitutional provision, obtain jurisdiction by certiorari to review it.

      Certiorari.

    Writ quashed.

      Sturdevant & Sturdevant and Charles W. Bates for relator.
    (1) Whatever the word “owner” may mean (Gitchell v. .Kreidler, 84'Mo. 472, 476; Stewart v. Ramsey, 196 Mo. 404, 414-415) in the' statutes and city charters requiring proceedings to enforce general real estate taxes and special taxes, respectively, to b,e brought against “the owner” of the property charged with the lien, these legislative provisions are complied with, and the proceeding is valid and effectual to collect the tax bills out of defendant’s ownership, the fee, when the owner of the fee is made defendant, although holders of liens inferior to the tax liens, general or special, are not made parties. Paxton v. Fix, 190 S. W. 328; Stafford v. Fizer, 82 Mo. 33; Gitehell v. Kreidler, 84 Mo. 472, 477; Allen v. McCabe, 93 Mo. 145; .Granite Bituminous Paving Co. v. ParkvieAv Realty, & Improvement Co., 168 Mo: App. 477. The suit is a good, valid and effectual proceeding to collect the tax, though only a part of co-owners of the property are made defendants. The judgment in such case will bind those Avho are parties. Smith v. Boese, 39 Mo. App.'20 ; Schneider Granite Co. v. Taylor, 64 Mo. App. 38; Salem ex rel. v. Young, 142 Mo. App. 167; Neenan v. St. Joseph, 126 Mo. 96; Walker v. Mills, 210 Mo. 694. (2) The provision in Section 25 of Article 6 of the Charter of tile City of St. Louis, that the special taxes shall be collected of the owners of the land as any other cl,aim in any court of competent jurisdiction, means by such process as is adapted to the enforcement of the lien on the lot. Barber Asphalt Pav. Co. v. St. Joseph, 183 Mo. 456; Vance v. Corrigan, 78 Mo. 96; Neenan v. Smith, 50.Mo. 529; Gitcliell v. Kreidler, 84 Mo. 476. The provisions of the Kansas City Charter referred to in Keating v. Craig, 73 Mo. 507, and Corrigan v. Bell, 73 Mo. 53,-to the effect that parties in interest might be made defendants in enforcing the lien, and that those not made parties should not be bound by the judgment, were only declaratory of the general law. Morey Co. v. St. Louis Co., 242 Mo. 260; Stafford v. Fizer, 82 Mo. 400; Perldnson v. Meredith, 158 Mo. 464. They do not differ in legal effect from the provisions in the Charter of the City of St. Louis. Morey Co. v. St. Louis Co., 242 Mo. 261; Perldnson v. Meredith, 158 Mo. 465. The question was not presented to the court for decision, but it is extremely doubtful if either Kansas City or the City of St. Louis can lawfully enact, in their charters, provisions regulating practice in the courts, the rights of parties in legal proceedings or the effect of judgments, especially as the general law, the Constitution and the code of civil procedure, cover the same matters, which are not strictly municipal. Badgley v. St. Louis, 149 Mo. 122; State ex rel. v. Telephone Co., 189 Mo. 83. (3) The lien of the special tax bill under the St. Louis Charter is kept alive and in full force by the bringing of a suit in court against the owner of the fee, to enforce the special tax lien within two years from the maturity of the tax bill, as is conceded was done in the case at bar, and which proceeding ever since then and still is pending, now in this court, for within the terms of the charter, proceedings in law were commenced to collect the special taxes within two years after the maturity of the bill, which proceedings are still pending. A proper proceeding for the collection of the tax bill brought within the time limited by the charter necessarily keeps alive the tax lien, for otherwise the proceeding would be a vain and useless thing. Huff v., Morton, 94 Mo. 408; Barnes v. Imhoff, 254 Mo. 225 ; Young v. Schofield, 132 Mo. 664. (4) In a proceeding in court to enforce and foreclose a superior lien, including tax liens, the holders of inferior liens, while proper parties, are not necessary parties. Paxton v. Fix, 190 S. W. 328; Stafford v. Fizer, 82 Mo. 398; Allen, v. McCabe, 93 Mo. 145; Gitehell v. Kreidler, 84 Mo. 477; Williams v. Brownlee, 101 Mo. 315; Talbot v. Roe, 171 Mo. 421, 443; Valentine y. Havener, 20 Mo. 133; Keaton v. Jorndt, 259 Mo. 194. (5) The rights of Nina Realty Company are foreclosed, though not a party to this suit, (a) The making of the trustee in deeds of trust a party defendant in a tax suit is of no legal effect, and it is useless to make him a party. Stafford v. Fizer, 82 Mo. 398; Gitehell v. Kreidler, 84 Mo. 472. (b) It would have been useless and of no avail to have made the holders of the seven thousand bonds parties when this suit was brought, for when, thereafter, the property was sold in the foreclosure of the deeds of trust securing the bonds, whatever interest the bondholders had in the property terminated — their liens were extinguished, and whatever title, if any they had, was determined. The relator, the Granite Bituminous Paving Company, was not compelled to search for unknown beneficiaries. Western Brass Mfg. Co. v. Boyce, 74 Mo. App., 354. Whoever, if any one, succeeded to the bondholders’ interest, whatever it was, is equally bound. Moreover, the bondholders had no title to the property. Dickerson v. Bridges, 147 Mo. 243. The trustee’s deed vests in the purchaser at the foreclosure sale the legal title of the owner. Grooms v. Mullett, 133 Mo. App. 481; Valentine v. Havener, 20 Mo. 135. But this title is subject to any prior liens. Grooms v. Mullett, 133 Mo. App. 481; Schmidt v. Smith, 57 Mo. 137; Scott v. Shy, 53 Mo. 481.

      Bryan, Williams & Cave for respondent; M. P. Murray of counsel.
    (1) This court is not concerned with whether the finding of the St. Louis Court of Appeals is right or wrong, but only with whether or not such finding is in conflict with any prior ruling of this court. State ex rel. Adam Roth Grocer Company v. Reynolds, 196 S. W. 1136; State ex rel. v. Farrington, 197 S. W. 912. (2) There is no prior holding of this court with which the finding of the St. Louis Court of Appeals is in anywise in conflict. No one of the cases relied on by the relator passes on the point in question. (3) On the contrary, such cases as there are in this State, so far as any are in point, are in absolute harmony with the holding of the-St. Louis Court of Appeals. Perldnson v. Meredith, 158 Mo. 464; Jaicks v. Sullivan, 128 Mo. 177; Forrey v. Holmes, 65 Mo. App. 114; Smith v. Barrett, 41 Mo. App. 460; St. Joseph ex rel. v. Baker, 113 Mo. App. 691; St. Joseph v. Baker, 86 Mo. App. 310; Eyermann v. Scollay, 16 Mo. App. 498 ; Smith v. Boese, 39 Mo. App. 15; Lumber Co. v. Schafer, 251 Mo. 539.
   "WILLIAMS, J.

Relator, by this, an original proceeding in certiorari, seeks to quash, on the ground that it conflicts with controlling previous decisions of this court, an opinion of the St. Louis Court of Appeals in the case of Granite Bituminous Paving’ Company, Respondent, v. Parkview Realty & Improvement Company et al., Appellants. The opinion of the St. Louis Court of Appeals is published in 199 Mo. App. 226.

The facts, stated in the opinion of the Court of Appeals, which are necessary to an understanding of the issue presently presented, may be summarized as follows:

On July 1, 1905, a special tax bill for street improvement work was duly issued by the City of St. Louis 'to the Granite Bituminous Paving Company (the contractor who performed the street improvement work). The tax bill was issued against a certain lot of ground in Block No. 3878 of said city, which lot had a frontage of 405.17 feet on Union Boulevard in said city.

At the time the work was performed and the tax bills therefor were issued said lot was owned by the Parkview Realty & Improvement Company, subject to two deeds of trust dated July 1, 1902, and August 1, 1902, respectively. Said deeds of trust were executed to secure the payment of certain bonds.

- Within two years from the maturity of said tax bill the Paving Company instituted suit to enforce its lien against said lot. In that suit the Parkview Realty & Improvement Company, and each of the trustees in the two deeds of trust above mentioned, were made parties defendant, but the beneficiaries under said deeds of trust were not made parties.

While said suit was pending, but after more than two years had elapsed since the date of the maturity of said tax bill, the above mentioned lot was sold under the two deeds of trust and the Nina Realty Company became the purchaser thereof. Thereafter by amended petition the Nina Realty Company was made defendant.

The case proceeded to trial and the circuit court entered judgment in favor of the Paving Company establishing and enforcing the lien of the tax .bill against the interest of both the Parkview Realty & Improvement Company (the owner named in the tax bill) and the Nina Realty Company (the purchaser at the mortgage sale).

The Nina Realty Company thereupon took an appeal • to the St. Louis Court of Appeals, which court, by a decision (now attacked for conflict), reversed the judgment of the circuit court.

The Court of Appeals in effect held that the beneficiaries in tlie two deeds of trust were “owners” within the meaning of the St. Louis Charter, and were necessary parties defendant to the suit which sought to enforce the lien of a special tax bill against their interest in said lot, and since said beneficiaries were not made defendants within two years from the maturity of said tax hill neither their interest nor that of their successor, .the Nina Realty Company, was chargeable with the lien. The opinion reads in part as follows:

“Obviously, error lies in this judgment, for it involves and affirms the idea that one’s rights may be concluded as though a valid claim existed against him or his property without having his day in court until long after such claim had become extinguished of its own force. By Section 25, Article VI, of the Charter, it is provided the tax bill shall become a lien upon the property charged therein and may be collected of the owner of the land and in the name of and by the contractor, as any other claim, in any court of competent jurisdiction. • Prom this, it appears that the lien is to be enforced against the land in the name of the owner thereof and, by subsequent provision of the same section, the lien of the tax bill, it is declard, ‘shall be destroyed and of no effect against the land charged therewith,’ unless proceedings shall have been commenced to colled the same within two years from the maturity of the bill and still be pending. Therefore, the proceedings must be commenced on the tax bill and against the owner of the land within such two-year period in order to preserve and establish the lien, or otherwise it is destroyed and extinguished perforce the very words that gave it life. The authorities are abundant and of one accord to the effect that the suit must be instituted against the owner within the two-year period prescribed, as will appear by reference to the following cases. . . . Considering the thought reflected throughout all of these authorities, it is obvious that the beneficiary in the deed of trust or mortgage is required to be made a party to the suit, for the reason that he is an owner, within the sense of that term as employed in the charter provision and as employed in the statute with respect to general taxes levied in behalf of the State. Some of the cases put the rule expressly on the ground that the beneficiary is an owner. [See Stafford v. Fizer, 82 Mo. 393; Gritchell v. Kreidler, 84 Mo. 472.]' Furthermore, the Supreme Court, in the recent case of Morey Engineering Co. v. St. Louis Artificial Ice Co., 242 Mo. 241, 146 S. W. 1142, in construing the St. Louis Charter, declared the beneficiary in the deed of trust an owner within the sense of that term, to the end of raising the lien of the tax bill from the position of the junior, where it otherwise lay, to that of senior lien over a mortgage prior*thereto in point of time. To the end of evincing that the charter contemplated the lien of the tax bill should prevail over the rights of a prior mortgage, the Supreme Court quoted from Section 25 of the charter as follows: ‘Said tax bills shall be and become a lien upon the property charged therewith, and may be collected of the owner of the land and in the name of and by the contractor as any other claim in any court of competent jurisdiction.’■ Touching the words thus quoted, the court .says: ‘Construed in the light of the case last cited, this means .that the tax is a lien upon the property, to be enforced by a proceeding in rem against the property. And, as ruled above, the word “owner” includes incumbrancers.’ If, then, the beneficiary in the deed of trust is to be regarded as an owner of the property for the purpose of postponing the lien of his prior mortgage to the lien of the subsequent tax bill, it would seem that he should be regarded as an owner in whose favor the requirement to institute suit within the two-year period, in order to preserve the lien, obtains. . . . From the views expressed above it follows that the interest of the cestuis que trustent, who were never made parties, remained unaffected by the proceeding herein. That interest has now passed to the Nina Realty Company, which corporation has acquired the fee simple title to' the land through the foreclosure of the deed of trust. That defendant was not made a party to the suit until more than two years after the maturity of the tax bill, and hence the land in its hands is not chargeable with the lien thereof”’

Much of the opinion is given over to a discussion of the difference between a lien for general taxes and a special tax lien, and the similarity of a mechanic’s lien to* that -of a special tax lien, and from that discussion the court draws the conclusion that the rule making mortgagees unnecessary parties in a suit to foreclose a lien for state taxes-is not applicable in a suit to foreclose a special tax lien, but that the rule making mortgagees necessary parties in establishing and foreclosing a mechanic’s lien is applicable in a suit of this kind.

Relator contends that the opinion of the Court of Appeals conflicts with the following controlling opinions of this court, to-wit: Paxton v. Fix, 190 S. W. 328; Stafford v. Fizer, 82 Mo. 393; Rothenberger v. Garrett, 224 Mo. 191, l. c. 197; Keaton v. Jorndt, 259 Mo. l. c. 193-4-5; Allen v. McCabe, 93 Mo. 138; Gitchell v. Kreidler, 84 Mo. 472, which announce the. rule that in order that title may pass at an execution sale under k judgment for general taxes it is not necessary that a cestui que trust should have been made a party defendant in the tax suit, but if not-made a party'such cestui que trust has the right to redeem from the purchaser at the sale; ‘ Talbot v. Roe, 171 Mo. l. c. 432, which applies the above rule to a sale under a vendor’s lien judgment where the subsequent grantees of the vendor’s vendee were not made parties defendant in the vendor’s lien sujt; Corrigan v. Bell, 73 Mo. 53; Olmstead v. Tarsney, 69 Mo. 396; Keating v. Craig, 73 Mo. 1. c. 509, which hold that under the Kansas- City Charter "(providing that if any person interested in land sought to be charged with the-payment of a special tax was not made defendant in the action to enforce the lien he should hot be affected by a judgment therein or a'sale thereunder but might redeem from the purchasers) a cestui que tru§t not made a party to the special tax bill suit had the right to redeem from the purchaser at such sale ; Morey Engineering and Construction Co. v. St. Uouis Artificial Ice Rink Company, 242 Mo. 241, holding that the lien of a special tax bill for street improvement issued under the St. Louis Charter is prior to the lien of a deed'of trust which antedates the tax bill, and that the ✓word “owner” in Section 25, Article 6, of said charter includes incumbrancers (In the above suit the cestui que trust was made party defendant); Jaicks v. Oppen-Reimer, 264 Mo. 693, which holds that a special tax bill issued under the Kansas City Charter is prior to the lien of all special tax bills which antedate the given tax bill; and Vance v. Corrigan, 78 Mo. 94, which holds that the word “owner” in the provision of the Kansas City Charter relating to suits to enforce special tax bills, includes the real owner, if known to the person bringing suit upon the tax bill, but if the real owner is not so known the charter provision is met by suing the record owner.

After a careful examination we have reached the conclusion that the opinion of the Court of Appeals does not conflict with the decisions above enumerated.

In this case the Court of Appeals were called upon to construe the St. Louis Charter, under which the special tax bills were issued. That Charter (Art. 6, sec. 25) provided that “said , tax bills shall be and become a lien upon the property charged therewith and may be collected of the owner of the land and in the name of the contractor as any other claim in any court of competent jurisdiction; ’ ’ the section further provides that unless proceedings shall have been commenced to collect the same within two years from the maturity of the tax bill and-still be pending the lien of the tax bill '“shall be destroyed and of no effect against the land charged therewith. ’ ’

This court in the Morey Engineering Co. case, supra, had already held that the word “owner” in said charter included incumbrancers. The Court of Appeals was required to decide the further question, whether under said charter provision the lien of the special tax bill against the interest of an incumbrancer in said land was destroyed by a failure to make said incumbrancer or his successor in title a party defendant, within two years from the maturity of the tax bill, in a suit brought to collect the tax bill.

The Court of Appeals held that the lien of the special tax bill was destroyed as against the interest' of the cestuis que trustent by reason of the failure to make them parties defendant within the two-year period prescribed by the charter.

We are unable to find where we have ever passed upon this question. Certainly not in the decisions above mentioned. We are not here concerned with the correctness or incorrectness of such holding, but are_ dealing" merely with the question of conflict.

' Finding no conflict in the opinion assailed it follows that our writ, was improvidently granted and • should be quashed.

It is so ordered.

Walker, Faris, Blair and Graves, JJ., concur; Bond, C. J., concurs in result; Woodson, J., not sitting.


source: Caselaw Access Project

author: FARIS, J.

license: Public Domain

text:
    THE STATE ex rel. FRANK W. McALLISTER, Attorney-General, v. JOHN G. SLATE, Judge of Circuit Court of Cole County.
    In Banc,
    June 14, 1919.
    1. CHANGE OF VENUE: Change of Judge: Misnomer. It is a misnomer to speak of'a proceeding to change the trial judge in a case as a change of venue, which means a change in the place of trial.
    2. PREJUDICE OF JUDGE: Removal from Trial: Prohibition. Prohibition is the proper remedy for the removal from the trial of a criminal case of a regular judge who is disqualified and nevertheless persists in sitting in its trial. [Sec. 5201, R. S. 1909.]
    3. -: Existence How Established. The ultimate fact of the existence of prejudice against the State on the part of the regular judge is what disqualifies him from trying a criminal case, and it is wholly immaterial whether his prejudice is warranted or unwarranted, or how it originates. If bias exists to an extent precluding a fair, unprejudiced and unbiased weighing of the law and facts on the State’s side, then prejudice is present to a degree forbidden to a judge by both the common law and the statute (Sec. 5198, R. S. 1909).
    4. -: Erroneous Ruling. Prejudice cannot be predicated of a mere erroneous ruling against the State on questions of law; but , such ruling may be a circumstance which, added to other things, tends to show prejudice in favor of the defendant.
    5. -: Disqualified By Statute: Available To State. Section 5198, Revised Statutes 1909, by declaring that “when any indictment or criminal prosecution shall be pending in any circuit court or criminal court, the judge of said court shall be deemed incompetent to hear and try the cause” when he “is in any wise interested or prejudiced,” is available to the St-ate, and if the judge is prejudiced against the State, or what is tantamount thereto, is biased and prejudiced in favor of the defendant, he loses jurisdiction to try the case; and absent his own voluntary disqualification, his prejudice may be raised and proved by the prosecuting officer for the State.

      6. -: ;-: Change of Venue: Special Judge. Said Section 5198 is not a cbange-of-venue statute, but deals wholly with the incompetency of the judge, and any of the disabilities set forth in the first three subdivisions thereof are available to the State, and being admitted or established by proof the judge becomes disqualified to try the case, and a special judge must be obtained in the manner prescribed by Section 5201, Revised Statutes 1909.
    Prohibition.
    Preliminary rule made absolute.

      Frank W. McAllister, Attorney-General, Jolm'T. Gose and Shrader P. Howell, Assistant Attorneys-General, and Lee B. Ewing, Special Counsel, for relator.
    (1) Prohibition is the proper remedy where a court or judge' assumes to exercise powers not granted by law, whether the exercise of the power is attempted in a case which the court is not authorized to entertain at all, or is merely an excessive and unauthorized application of judicial power in a cause otherwise properly cognizable by the court or judge in question. State ex-rel. v. Fort, 210 Mo. 525; State ex rel. v. McQuillin, 256 Mo. 703; St. Louis Railroad Co. v. Wear, 135 Mo. 256; State ex rel. v. Withrow, 135 Mo. 376; State ex rel. v. Wear, 129 Mo. 619. (2) The facts clearly show that respondent is prejudiced in the case of State v. Scott. Webster’s Unabridged Dictionary; Standard Dictionary; Eneyclopediac Dictionary; 22 Am. & Eng. Ency. Law, p. 1173;' Ex parte Howell and Ewing, 200 S. W. 65. (3) If a circuit judge is prejudiced in a cause, either for or against the State or the accused, he is incompetent to sit in said cause, and any exercise of jurisdiction therein by him except to certify to his prejudice and take steps to call another judge is beyond his power. Sec. 5198, R. S. 1909; Webster’s Unabridged Dictionary; Century Dictionary ; Standard Dictionary; Art 6 sec. 29, Mo. Constitution; Secs. 5200, 5201, R. S. 1909; Broom’s Legal Max. 125; Ex parte Howell and Ewing, 200 S. W. 65; Jim v. State, 3 Mo. 147; State ex reí. v. Wofford, 111 Mo. 526; State ex rel. v. Wear, 129 Mo. 619; People v. Connor, 142 N. Y. 130; Coal v. Doolittle, 54 W. Ya. 210, 227; Commonwealth, v. Davidson, 91 Ky. 162; Dimes v. Grand Junction Canal (Eng.), 3 House of Lords Cases, 793. The State has the right, when the judge is prejudiced, to a change of venue from said judge. This was a common-law right and has never been taken away by any provisions of the Constitution or statutes of this State. Sec. 5198, R. S. 1909; 4 Blackstn’s Comm., 321; 2 Hale’s Pleas of the Crown, chap. 27, p. 201; 1 Pike’s History of Crimes in England, 479; Rex v. Cowle, 2 Burr. 859; Rex v. Harris, 3 Burr. 1333; People v. Baker, -3 Park Cr. (N. Y.) 181; Comm. v. Ralph, 111 Pa. 365; People v. Peterson, 9'3 Mich. 27; Crocker v. Justices, 208 Mass. 167; People v. Webb, 1 Hill, 179; People v. Fuhrmann, 103 Mich. 593; People v. Baker, 3 Abb. Prac. 400; Chitty’s Crim. Law and Prac. (Ed. 1847) marg. p. 201; Comm. v. Davidson, 91 Ky. 162; Barry v. Traux, 13 N. D. 131; Hewitt v. State, 43 Fla. 194; State ex rel. v. Durflinger, 73 Ohio St. 154; 1 Bishop’s Crim. Prac. secs. •73, 113; Ex parte Howell and Ewing, 200 S. W. 72; State ex rel. v. Wear, 129 Mo. 619; State ex rel. v. Wofford, 111 Mo. 526; Jim v. State, 3 Mo. 147; State v. Gates, 20 Mo. 404; People v. Connor, 142 N. Y. 130; Coal Co. v. Doolittle, 54 W. Ya. 227; State v. Holloway, 19 N. M. 528; Queen v. Philan, 14 Cox Crim. Cases, .579; Queen v. Conway, 7 Irish Com. Law Rep. 525.

      Irwin & Haley and A. T. Dumm for respondent; Roy'Williams of counsel.
    (1) The only office of the writ of prohibition is to prevent a usurpation of jurisdiction by a subordinate court. High on Extraordinary Remedies (3 Ed.), secs. 767b-768; Spelling on Injunctions (2 Ed.), sec. 1725. (2) A subordinate court, having jurisdicton over the subject-matter, has the right to determine it, incorrectly as well as correctly; and its judgment will not be interfered with by a superior court through the writ of prohibition. M. K. & T. Ry. Co. v. Smith, 165 Mo. 321; State ex rel. Laclede Bank v. Lewis, 76 Mo. 370; State ex rel. Daugherty v. Hickman, 85 Mo. App. 198; State ex rel. Dawson v. Court of Appeals, 99 Mo. 216. (3) The writ of prohibition is not a disqualifying writ. It leaves the court where' it found it, either with or without jurisdiction. The want of jurisdiction must appear independently of the writ, the only office of the writ being to .prohibit action without jurisdiction at the time the writ was issued; that such want of jurisdiction arose independently of the writ, either through the filing of the affidavit, by operation of some statute, or by operation of the common law. Spelling on Injunctions (2 Ed.), secs. 1716 et seq.; High on Extraordinary Remedies (3 Ed.), secs. 762 et seq; State ex rel. Morse v. Burckhartt, 87 Mo. 533; State ex rel. Ellis v. Elkin, 130 Mo. 90. (4) The right to a change of venue is- purely statutory, and unless some authority is given by statute for the change demanded, none exists. State v. Anderson, 96 Mo. 247; State ex. rel. v. Wofford, 119 Mo. 410; State ex rel. v. O’Hallaron, 144 Mo. App. 574; State ex rel. v. Denton, 128 Mo. App. 304; State v. Headrick, 149 Mo. 396; State v. Barrington, 198 Mo. 85; State v. Green-wade, 72 Mo. 298; State v. Sanders, 106 Mo. 188; State v. Witherspoon, 231 Mo. 716-; State v. Dyer, 139 Mo. 209. (5) Secs. 5198, 5199, 5200 and 5201, R. S. 1909, relate to the same subject-matter, and should be construed together as being in pari materia. State ex reí. v. Chemical Works, 249 Mo. 702; Gantt v. Brown, 238 Mo. 560 ; In re Ryan Estate, 174 Mo. App. 202; Hegberg v. Railroad, 164 Mo. App. 514; State ex rel. McClanahan v. DeWitt, 160 Mo. App. 304; City of Eldon v. Phillips, 180 S. W. 418. (6) Penal statutes must be strictly construed. State ex inf. Collins v. Railroad, 238 Mo. 605>; Boyd v. Mo. Pac. Ry. Co., 249 Mo. 110; State v. Shortell, 174 Mo. App. 153.
   FARIS, J.

This is all original proceeding in prohibition, whereby.it is sought to prohibit respondent, as Judge of the Circuit Court of Cole County, from taking further jurisdiction in the trial of the case wherein the State of Missouri is plaintiff and John W. Scott is defendant, said cause being No. 1879 upon the docket of the Cole County Circuit Court.

Heretofore, upon the petition of relator by the Attorney-General of the State of Missouri, we issued our preliminary rule in prohibition, which rule it is now sought to make absolute.

The facts upon which it is sought by the State, through its Attorney-General, to prohibit respondent from taking further jurisdiction in the trial of the case of State v. Scott, as these facts are set forth in the petition for our writ, run briefly as follows:

At and prior to the second day of February, 1918, which is the date upon which our preliminary rule herein .was issued, there was pending against said John W. Scott, in the County of Cole aforesaid, an indictment in two counts, charging defendant therein with embezzlement and grand larceny. By virtue of an order made by the Governor of the State of Missouri, pursuant to the ■ statute in such cases made and provided, the Assistant Attorney-General, together with Special Counsel for the State, appeared in the Circuit Court of Cole County, and aided in the prosecution of said case of State of Missouri' v. Scott. After the making of said order by the Governor, and on the 27th day of November, 1917, the case of State v. Scott came on to be heard, before respondent and the • State, by Shrader P. Howell, Assistant Attorney-General, and Lee B. Ewing, as Special Counsel for the State, appeared-and announced that it was ready for trial. Thereafter, but prior to the impaneling of the trial jury for the trial of the case, said Howell and Ewing became possessed, it is alleged, of information and knowledge of the existence of prejudice on the part of the respondent against the State of Missouri. The State thereupon, through its counsel, withdrew its announcement of ready for trial, and having first obtained leave of court in that behalf, filed a formal, verified motion alleging the disqualification and incompetence of respondent to sit in the trial of the case of State v. Scott on account of the alleged prejudice of said respondent against the State. Thereupon, on the ground of this alleged disqualification of respondent, the State moved that respondent proceed in accordance with the provisions of Section 5201, Revised Statutes 1909. The latter section makes provision for the calling in of a special judge to sit in the trial of any criminal case wherein the regular judge is disqualified.

This motion being overruled, relator made the allegations therein and the fact of overruling such motion the grounds of application for our writ. In the petition for our writ relator avers that respondent is prejudiced against the State in said case of State v. Scott, anid by reason thereof that he is incompetent to hear and determine said case, and prays that we issue our writ of prohibition to prohibit respondent from taking further proceedings in, or holding further jurisdiction therein, and from taking further cognizance of said case.

Our- preliminary rule was, as above stated, issued, and for return thereto respondent admits all of the allegations of said petition except the fact of his prejudice in any degree in favor of the said Scott, or against the State of Missouri, which fact of prejudice he categorically denies. Respondent further denies that Messrs. Howell and Ewing, as Assistant Attorney-General and Special Counsel as aforesaid, were legally in full charge of the prosecution in the case of State v. Scott, and avers the fact to be that their acts in that behalf are without authority and not warranted by the law of the State of Missouri. This latter allegation is not referred to in the briefs, and we assume therefore that it has been abandoned.

The denial by respondent of the alleged fact of his prejudice raised an issue of fact in the case. Thereupon this court made an order appointing J. P. McBaine, Esq., of the Boone-County bar, as commissioner to hear and see the evidence adduced and to find, make and return to us his findings and conclusions, both of fact and of law.

In due course,our learned commissioner performed the duties made incumbent upon him by our order, and /pursuant to the command thereof has reported to us that he finds the issues joined, both of .law and of fact, against the respondent, and accordingly recommends that the preliminary rule herein issued be made absolute. To this report respondent has duly filed his exceptions, wherein he takes issue both upon the facts and the law. The case is before us, therefore, upon both of . these questions.

I. Regard being had to the briefs of able counsel, and to the positions ¿ssumed and the arguments made therein, it is apparent that some confusion exists as to the exact nature of the relief sought herein ^y relator. This thought obtrudes itself from the fact that the argument' is in large part directed against the assumed position that the relator is asking for prohibition, with the object of procuring a change of venue on the part of the State. From this assumption as a basis, it is strenuously urged that both the law and the Contitution forbid a change of venue to the State and therefore no such change is permissible.

It may be wise, therefore, in passing, to dispose of this erroneous view by a brief recourse to the history of the law and to first principle; whereupon much that is urged against the State’s position at once becomes wholly irrelevant. In the very twilight of the trial jury’s origin, men of the vicinage who were witnesses, or recognitors, as well as jurors, came up to the king’s trial courts from the identical neighborhood in which the crime was committed for which accused was to be tried. They were brought up by a writ, whieh writ from the ■ command that it contained, came to be called a venire facias; hence the word venire, which from being used- as the name of the writ which, brought the jurors up has come to be used sometimes in the books as the name .collectively of the jurors, or those brought up by the writ. Whether.we derive the word venue from the French as the Anglicized spelling of the past participle of venir, to come, and thus it means “(those who) come,” or from the modern French substantive, meaning “a coming,” or whether it is derived from the Latin vicinitatum, meaning “of the neighborhood,” shortened by usage to vicinetum, and again in law Latin to visnetum, whence visne, which in early days was used and written interchangeably for venue (10 Bacon’s Abr. 364), we need not stop to ascertain, for the matter is one obscured by thick doubt. From meaning the place from which the jurors came, in course of time it came to mean the place to which the jurors came, i. e., the place of trial. According to the universal trend of modern authority venue now means “the place of trial for an action.” [40 Cyc. 11.] In the true sense in which we are here compelled to consider it, the word does not mean the judge or the court before whom an accused is put upon his deliverance, but it means the place at which he is to be tried. Hence, if that place of trial is not to be changed, or sought so to be by this, or as a result of this, proceeding, the matter is one merely of a change of the judge before whom the trial is to be had and not a change of the place, i. e'. the venue whereat he is to be brought to trial. It follows that the expression change of venue is a misnome,r and all arguments against the permissibility of a change of venue to the State have nothing to do with the case; enjoying in that behalf a condition bearing a striking similtude in all respects to that of “the flowers that bloom in the spring.”

II. Upon the question whether prohibition is the proper remedy, the case of State ex rel. v. Wear, 129 Mo. 619, is upon principle conclusivé. This is so apparent as scarcely to require exposition. The ultimate facts in the Wear case were that Judge Wear, concededly related to the defendant, and therefore biased and prejudiced as the Legislature had determined, by the very fact that it passed the statute disqualifying him and others similarly situated, yet •persisted in sitting in the trial of the ease, or in preventing another judge from taking jurisdiction therein. If the fact of the Has of Judge Wear had not been foreclosed by the legislative determination of the fact of prejudice from the fact of relationship, but had been left to be determined by evidence adduced,' it is as plain as a 'pikestaff that the cases presented are precisely alike. Therefore, if the fact of respondent’s prejudice and Has shall have been shown by the evidence in this case, he stands in a position in no wise different from that of Judge Wear, and. so prohibition will lie.

Therefore, if we.shall find as a matter of fact from the evidence in the case that respondent is prejudiced we bring the case, as .we look at it, precisely within' the procedure successfully invoked in the Wear case. How stands the evidence upon this question of fact?

Our learned commissioner who heard the evidence and who was by virtue of our order empowered to make and report to us his conclusions both of fact and of law, has found from the evidence that respondent was prejudiced. While we are 'not compelled to accept as final and binding upon us the conclusions of our learned commissioner either upon the law or upon the facts (State ex inf. v. Arkansas Lumber Co., 260 Mo. l. c. 271), these conclusions are at least persuasive. We have gone over the evidence and the divers exhibits forming parts thereof and have reached the identical conclusion in regard to their weight add probative effect which was reached by our commissioner. Upon this point our commissioner, summing up, reports to us thus:

. “We conclude therefore that because of all Judge Slate had heard and surmised and had read that he was not in an unbiased frame of mind, and this we say without in any manner intending to reflect upon Judge Slate’s honesty of purpose.
“Summing up the matter comes to this:
“Mr. Howell had conducted the investigation before the Cole County grand jury, which resulted in these indictments. During the time of this investigation there were frequent controversies and disagreements between Judge Slate and Mr. Howell. The grand jury proceedings attracted public interest and the newspapers of the State gave a great deal of space to the investigation. A reporter for one of the papers was sent to jail by Judge Slate for contempt of court, and two editors of papers in the State were cited for contempt of court. The newspaper articles were frequently uncomplimentary to Judge Slate and he was no doubt quite exasperated by the many newspaper articles about the investigation. Judge Slate had concluded that many of the newspaper articles were inspired by Mr. Howell and others in the Attorney-General’s office. Long before the cases came on for trial Judge Slate had developed strong ill-feelings against Mr. Howell. He was convinced that the Attorney-General’s office gave out information to various newspaper reporters upon which they based newspaper articles criticising and reflecting upon him.
“Judge Slate’s own testimony before the commissioner was also convincing that during the trial of these cases he had no little feeling of ill-will for Mr. Ewing.
“There is nothing in the record that shows that Judge Slate had any reason for favoring or shielding the defendant, John W. Scott. While the testimony shows that they had known each other for a great many years, it also shows that their social and political relations were not very friendly. We are convinced, however, that the court’s attitude as to Mr. Ewing and Mr. Howell had prejudiced his mind against the prosecution of these cases, including the case of State of Missouri v. John W. Scott. We believe that because of this feeling that existed he could not and did not view with equanimity propositions advanced on. behalf of the State by the State’s representatives in charge of the prosecution of this case. We feel that he did not possess that calm, dispassionate and unbiased condition of mind essential in order that the trial judge shall conduct a trial with complete impartiality.
“We feel that because of this feeling against Messrs. Howell and Ewing the interest of the State could not be sufficiently considered by Judge Slate. We think for example that had Judge Slate on the occasion in question possessed an open mind he would have listened to the argument of the attorneys for the State as to the admissibility of other offences in the case of State of. Missouri v. John W. Scott, and that he would not have ruled immediately without any argument when the matter was presented to him that such testimony was inadmissible.
“The decisions of this court beginning with State v. Myers, 82 Mo. 558, and ending with State v. Patterson, 196 S. W. 3, no doubt most strongly tend to support the view that evidence of other sales of coal by Scott were admissible to prove his intent in selling the coal in question.
“Judge Slate admitted evidence of other offenses in the case of State of Missouri v. James C. Welch, and we confess we are unable to see any distinction whatever in principle between the Welch case and the Scott case. We of course recognize that it is not proof of prejudice to merely show that a judge has ruled incorrectly upon the admissibility of testimony. Our finding of prejudice is not based on these rulings alone. We think though that in view of all the circumstances, and particularly the manner in which the rulings were.made, the rulings do show that Judge Slate did not maintain an open and unprejudiced mind.”

To this summing up, and to the evidence upon which it is based, other facts shown by the record might have been added. Particularly the facts found in the testimony of witnesses Mayhall and Adcock touching the ■ expressed view of respondent that “there was nothing in these cases;” this statement, it is fair to say, was dénied by him as to its application to the pending case, of' State v. Scott.

III. We are constrained to agree also with, the view of the commissioner, that if prejudice existed, it makes no earthly difference in the law of the case as to maraier i*1 which that prejudice was engendered. Prejudice is the ultimate fact; its origin is wholly immaterial. Likewise it is immaterial whether it was warranted or unwarranted, justified by the facts of not justified thereby. If in fact bias exists, to an extent which will preclude a fair, unprejudiced, and unbiased weighing of the law and the facts on the State’s side upon a trial of the case of State v. Scott, then prejudice is present to a degree forbidden to a judge by both the common law (Massie v. Com., 93 Ky. 588) and the statute (Sec. 5198, R. S. 1909).

We are also constrained to agree that the record before us shows the existence of prejudice in the mind of the respondent. This appears not only from what we find and from what the commissioner finds, but, to use a homely expression from the vernacular, the fact of prejudice can be read from between the lines upon almost every page of the voluminous record before us. In so ruling we acquit the learned respondent of conscious knowledge of the fact of his bias. Regrettably, the cases pending were such as naturally to create great public interest. They were, also regrettably, being tried beforehand by the press of the State in the forum of public opinion. In the search after sensational features which would catch and hold the public eye, and create public opinion, much was printed which was based upon bald surmise. Much also was deduced which had as its sole basis erroneous conclusions drawn from acts in themselves innocent, or acts done by respondent in the line of his official duty. Prom the latter acts in some instances, deductions were printed which reflected upon him unjustly and had the effect to distort respondent’s enforced absence while holding regular terms of court in other counties of his circuit into seemingly studied reluctance to continue the grand jury investigation.

IV. It is unquestionably true that from mere error in ruling against the State upon a question of law, neither interest, nor bias, nor prejudice can be safely predicated. But if the proof show that upon a trial of a case wherein intent must be proven or deduced, if at all, from proof of the doing of other similar acts, in the same neighborhood, about the same time, evidence of such similar acts was admitted in the trial of a case against A, but denied in the trial immediately thereafter of a case against B, such fact may be a circumstance, which, added to other things, may tend to show prejudice in favor of B. Especially if, as was the case presented, the reason and the law favoring the admissibility of the evidence of similar acts against B was, by far, more apparent and cogent in B ’s case than it was in the case of A. Moreover, such a ruling would afford a moré cogent circumstance if it were announced that it would be made, as was the case here, before the trial of the case against B. We repeat, for emphasis’s sake, that nothing is better settled in law- than that mere error of the kind mentioned when standing alone, disassociated from other facts and circumstances, does not afford the least evidence of bias or prejudice.

But be all this as may be, we are convinced that in the state of mind into which the learned respondent was driven by the matters and things mentioned, it was not possible for him to try the case before him without prejudice, and so; without more, we agree with the finding of the fact of prejudice as made by our commissioner. In so finding, we pause in all fairness to disclaim the remotest reflection upon the motives of the able and learned respondent. His attitude may well be ascribed to the righteous exasperation of an honest and conscientious judge driven to indignation and from judicial plumb by what he conceived' to be unjust and unwarranted criticisms of his official conduct.

V. Which brings us to the point of law strenuously and most ably presented by respondent’s learned coun: sel. This point, as forecast supra, is not whether the State is ever entitled to.a change of venue. There is no question of a change of venue in this case. The question of law is: Can a trial judge, absent his own v0¡un^ary disqualification, lose jurisdiction of a criminal case because of his interest or prejudice therein against the State? We agree with the conclusion of law .upon this point of our learned commissioner, and are constrained upon both reason and authority to hold the affirmative of the question stated.

Some settled propositions as forewords are apposite. One of these is an axiom of the common law wholly applicatory by the closest analogy, which runs in substance that no man ought to sit in judgment in his own case. The other is that if the objection of .prejudice against the State be raised in a case such objection must of necessity be raised by the sworn, elected, prosecuting 'officer of the State, that is, either by the prosecuting attorney of the county wherein the cause is pending, or by the Attorney-General of the State. Such prosecuting officers owe neither lesser nor greater duty, but precisely the same duty, to both State and defendant in the trial of criminal -cases as does the judge of the circuit court. It cannot be assumed that such prosecuting officer would act in such a case except from motives bottomed upon considerations of the very highest devotion to official duty. It cannot be urged then against the question propounded that the taking of the affirmative thereof, would open a Pandora’s box of evils and make trials of criminal cases subject to captious objections of disgruntled prosecuting officers, with all the delays incident thereto.

For the reason forecast by us at the outset of this discussion, we need not consider whether that provision of our organic law which guarantees to the accused in criminal prosecutions “the right to appear and defend in-person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against •him face to face; to have process to compel the attendance of witnesses in Ms behalf, and a speedy public trial by an impartial jury of the county” (Sec. 22, Art. 2, Mo. Const.) would or would not render invalid any legislative act which had for its object a trial by a jury of some other county than that wherein the alleged crime was committed.. That question, upon a consideration of what the expression “change of venue” connotes, falls out of this case. For upon the facts here, considered in the light of the relief sought by this proceeding, this case comes precisely within another provision of our Constitution (Sec. 29, Art. 6, Mo. Cons.) which provides that: “If there be a vacancy in the office of judge of any circuit, or if the judge be sick, absent, or from any cause unable to hold any term, or part of term of court, in any county in his circuit, such term or part of term of court may be held by a judge of any circuit, and at the request of the judge of any circuit, any terms of court or part of term in his circuit may be held by the judge of any other circuit; and- in all such cases, or in any case where the judge cannot preside, the General Assembly shall make such additional provisions for holding court as may be found necessary.” That part of the above provision which we italicize was added to an existing provision of the Constitution of 1865 (Sec. 17, Art. 6, Mo. Cons. 1865) by the adoption of the Constitution of 1875. Pursuant to the permission granted by Section 29 of Article 6 of the Constitution of 1875, there are now divers sections of the statute affecting the matter of interest of the trial judge and providing for his disqualification upon the grounds of interest, relationship and prejudice. [See Sec. 3866, and Sec. 5198, R. S. 1909 J Likewise the Legislature has' passed divers statutes providing the details of calling in other judges, or of electing special judges. [See Secs. 5199, 5200, 5201, R. S. 1909.] Some of the above sections antedated in their original provisions, at least, the adoption of the Constitution of 1875. But all these, where not in conflict with the provisions of the organic law of 1875, continued in force and are now in force, ■ pursuant to the Constitution itself. [See. 1, Schedule, Mo. Cons.]

Learned counsel for respondent - insist that Section 3867, supra, is alone apposite, and that Section 5198, supra, has no application. ¥e are constrained’ to hold to the contrary. The legislative history of these two sections clearly shows the fallacy of this position. Section 5198 seems to have had its beginning and to have come into the statutes in 1835. [R. S. 1835, sec. 15, p. 486.] It was then a change of venue statute. Many changes and amendments have been made to it from time to time, till manifestly it has, so far as its own contents are concerned, long since ceased to be solely a change of venue statute. Section 5198, read at the time the matters and things here under discussion transpired, and now reads thus:

“When any indictment or criminal prosecution shall be pending- in any circuit court or criminal court, the judge of said court shall be deemed incompetent to hear and try said cause in either of the following cases: First, when the judge of the court in which said case is pending is near of kin to the defendánt by blood or marriage; or, second, when the offense charged is alleged to have been committed against the person or property of such judge, or some person near of ,kin to him by blood or marriage; or, third, when the judge is in anywise inr terested or prejudiced, or shall have been counsel in the cause; or, fourth, when the defendant shall make and file an affidavit, supported by the affidavit of at least two reputable persons, not of kin to or counsel for the defendant, that the judge of the court in which said cause is pending will not afford him a fair trial.”

The reason for the enactment of the original of said Section 5198 is fairly dbvious and historically interesting. In 1832, and at a time when all statutes providing’ details for the removal of eases by change of venue had been theretofore repealed, the case of Jim v. State, 3 Mo. 147, was heard by this court. The defendant, a slave, had been convicted of murder. The trial below was before Judge David Todd, whose slave the defendant was. Defendant had applied for a change of venue, which the trial court refused to grant. Upon defendant’s appeal here the refusal to grant a” change of venue was held to he error, notwithstanding the fact that all the statutes providing for the details of the practice in change of venue proceedings had been theretofore repealed. Jim v. State, 3 Mo. l. c. 177.] There then- existed no applicable statute from which the practice could be deduced. All there seems to have been in our statutes at all applicable to the situation confronting this court was an extremely general statute found in the chapter on ‘ ‘ Courts ’ ’ (Sec. 23, p. 277, vol. 1, Revised Laws of Missouri 1825), which statute, so far as pertinent, reads thus:

“That no judge of the Supreme Court, who is interested in any suit or related to either party, or who shall have been of counsel in any suit or action . . . pending in said court, shall sit on the determination thereof . . . nor shall any judge of the circuit or probate court sit on the determination of any cause or proceeding, either civil or criminal, in which he is interested or related to either party . . . but such cause or proceeding if pending in the circuit court shall be removed to some county where such objection does not exist according to law . . provided that in ■ no criminal case shall the venue be changed without the consent of the defendant.”

The above section has come down to us after many changes and amendments as Section 3867, Revised Statutes 1909. Following the decision in the case of Jim v. State, supra,.the Legislature amended the Chapter on Practice and Proceedings in Criminal Cases, by adding thereto a number of sections which set forth the grounds for granting changes of venue and provided for the details of the practice therein. " [R. S. Mo. 1835, sec. 15 et seq., p. 486.] From Section 15, supra, after being many times amended, we get Section 5198. The fact that said Section 15 was passed by reason of the decision in the Jim case, is clearly indicated by one of its provisions, which is that if the defendant be a slave and the judge of the circuit court be the owner thereof, a removal of the cause to another court shall be ordered.

It will be noted however, that Section 5198 now contains within itself no reference to any removal of the cause from the county of the venue. It merely deals with the incompetence of the circuit judge, and sets forth the conditions or disabilities under which he shall be incompetent to try a given criminal case. Such judge is made incompetent to sit in the trial under four separate and distinct conditions: ‘ ‘ First, when the judge of the court in which said case is pending is near of kin to the defendant by blood or marriage; or, second, when the offense charged is alleged to have been committed against the person or property of such judge, or some person near of kin to him by blood or marriage; or, third when the judge is in anywise interested or prejudiced, or shall have been counsel in the cause; or, fourth, when the defendant shall make and file an affidavit, supported by the affidavit of at least two reputable persons, not of kin to or counsel for the defendant, that the judge of the court in which said cause is pending will not afford him a fair trial.” The first of these creats an incompetence, or disqualification, in the judge for which the State may prevent the judge from sitting by our writ of prohibition. [State ex rel. v. Wear, 129 Mo. 619.] The second seems to constitute a status of incompetence- whereby the accused being prejudiced might alone be interested in acting. The third (the existence of prejudice or interest, or the fact that the judge has been of counsel, being granted or proved) will clearly serve as a basis of disqualification either for the State, or for the defendant. For, under the reasoning in the Jim case, supra, as found at side-page 176, either of the above reasons could be urged by the accused as a ground for a change of venue. The fourth ground is clearly applicable to the accused. By virtue of it, he may urge the specific ground set out in such fourth subdivision, namely, that the judge of the court “will not afford him a fair trial,” or lie may urge- any other ground contained in this statute.

From the plain language of subdivision three of Section 5198, supra, it will not do to say that interest or prejudice against the State, or what is tantamount thereto, bias and prejudice in favor of the defendant, or the fact that the trial judge had been of counsel for the defendant, cannot be taken advantage of by the State, or that such things are not disqualifications, which produce, when the existence thereof is either admitted or proved, an incompetence to sit as trial judge, for which the judge may be prevented from sitting by the State’s prosecuting officer. There is no manner of doubt that if the circuit judge be in fact interested or prejudiced against the State, or shall have been of counsel for the defendant, he ought not to sit. This is obviously both the moral and ethical view, and the statute has enacted these morals and ethical- views into a law. No man' ought to be a judgé in his own case, and a case wherein a judge is interested is one wherein, to an extent and in effect, the case becomes the judge’s own case. The latter is merely an evolution of the above fundamental maxim.

Neither will it suffice to say that the fact of the existence, or non-existence, of interest or prejudice must be left for determination to the automatons action of the trial judge’s conscience. Nor that some such intention in the Legislature’s mind is to be deduced from the fact that it has enacted no law which provides details of the practice to govern cases wherein, though interest and prejudice exist, the conscience of the trial judge has failed to move him aright. The case .of State ex rel, v. Wear, 129 Mo. 619, was such a case, and this court took jurisdiction and prohibited the judge therein from holding further jurisdiction of a criminal case, wherein the son of the judge was the defendant.

Our learned commissioner in his conclusions upon the law construing Section 5198, says:

“It is contended by respondent’s -learned counsel that the terms and provisions of Section 5198 are applicable only to the defendant, and that a circuit judge in a criminal prosecution cannot be disqualified at the instance of the State. We do not agree with this interpretation of the section. The language of the section is general, and there is nothing stated expressly or impliedly that limits the first three subdivisions of the section to applications on behalf of a defendant. It is remembered that the fourth subdivision expressly relates to application upon the part of the defendant. That subdivision provides ‘when the defendant shall make and file an affidavit, supported by the affidavit of at least two reputable persons, not of kin to or counsel for the defendant, that the judge of the court in which said cause is pending will not afford him a fair trial’ that the regular judge shall be disqualified. This section, it will be noticed, is especially liberal in favor of the defendant, and provides that -the regular judge shall not sit when two reputable persons not of kin or of counsel and the defendant himself will make an affidavit that the judge will not afford him a fair trial.
‘ ‘ The fact that the fourth section is by express provision applicable to the defendant, and that the other subdivisions do not mention the defendant, strengthens the conclusion that the first three subdivisions of the sections are general provisions enumerating causes which shall disqualify a judge at the instance of either the State or the defendant.
“This section was under consideration by,this court in State ex rel. v. Wear, 129 Mo. 619, and while the facts in that case are not precisely the same as in this case, yet, the principle of law to be deduced from that decision is controlling here. In that case Judge Wear was disqualified because of his relationship to the defendant on trial. This court called attention to Sections 3247 and 4174, Revised Statutes 1889, which are now Sections 3867 and 5198, Revised Statutes 1909. Judge Gantt, however, in the opinion quotes from Section 4174, now Section 5198, Revised Statutes 1909, and con-eludes that ‘from these provisions of the Constitution and statutes of this State it is plain that Judge Wear by his relation to his son, the defendant, was disqualified, and knowing this it was his imperative duty to either order an election of a special judge or request the judge of another circuit to sit in the trial of said indictment.’ In that case, after Judge Wear had called in a special judge he declined to permit the special judge to try the case, but attempted, himself, to exercise jurisdiction, and was prohibited from exercising jurisdiction by a writ of prohibition from this court.
“There are numerous decisions of this court sustaining the general principle that it is the policy of the law in this State that criminal trials shall be conducted by wholly disinterested judges. [See Jim v. State, 3 Mo. 147; State v. Gates, 20 Mo. 401.] In the latter case it was said: ‘It was both the policy and intention of our Legislature to have tribunals for the determination of criminal cases above all suspicion — courts upon whose disinterestedness, not only the prisoner, but the whole community can repose with entire confidence.’
“And Section 5198, Revised Statutes 1909, also indicates the policy of the State, for it will be noticed it is provided that the judge shall be incompetent to sit if he is in ‘anywise interested or prejudiced.’
“There is no doubt but that it is true that as strong reasons may exist why a prejudiced judge should not try a case when the suggestion comes from the State as well as when the suggestion comes from the defendant. As was said by Walker, P. J., in Ex parte Howell, 200 S. W. 65, l. c. 72: ‘A condition of the public mind may exit in a locality which would impel a public prosecutor, in a,n honest effort to discharge his duty, to at least call the trial judge’s attention to circumstances indicating that he had, although without corrupt intent, prejudged the case, and that it should be tried by another. This would' involve no question of personal integrity, afford at least a fair opportunity for the State to conduct the prosecution free from any possible °ulterior influence, and in nowise interfere with any right accorded to the defendant.’ ”

No difficulties or embarrassments can arise in the administration of the criminal law from the view that a circuit judge may be disqualified by reason of prejudice against the State from sitting in the trial of any criminal case, and that being so disqualified such judge may be by our writ of prohibition prevented from sitting therein. The situation thus brought about by a compulsory disqualification is in no wise different than the situation which would have existed had the learned respondent of his own volition declared his own disqualification. Automatically the applicátory statutes will, as in case of a voluntary disqualification, apply and solve all the problems presented, and thus the resultant situation presents no difficulties either insuperable or insolvable.

Being constrained by the record to the view that respondent does not possess that unprejudiced and disinterested state of mind in regard to the case of State v. Scott which is requisite under the statute, and which in essential and necessary as a matter of right in the proper administration of justice, and being fully convinced that this court has the power, both at common law and by statute, to prohibit him from further exercising his jurisdiction in the trial of said case, we are of the opinion that our preliminary rule in prohibition, heretofore issued herein, ought to be made absolute. Let it be so ordered.

All concur; , Blair, Woodson and Graves, JJ., not sitting.


author: BOND, C. J.

text:
    GEORGE A. GRAVES, Trustee for EUGENE H. MOORE and IONE L. MOORE (Now MRS. IONE WADLEIGH), v. J. W. SMITH and MAE SMITH, Appellants.
    In Banc,
    June 14, 1919.
    1. JURISDICTION: Judgment in Attachment. The court does not acquire jurisdiction in an attachment suit against a non-resident unless the notice by publication, or the substituted service, is in the form prescribed by the statute; and a judgment attempting to fix a lien on land is void; unless the notice, or substituted service, is sufficient to bring the subject-matter and the defendant within the judicial cognizance of the court.
    2. -: -: Substituted Service. The statute (Sec. 1770, R. S. 1909) requires that in attachment suits the order of publication shall “state briefly the object and general nature of the petition,” and the substituted service upon a non-resident permitted by Section 1778 is only a statutory alternative for notice by publication, and has no broader scope, and is intended to inform the non-resident that the court has seized the res and will proceed to adjudge the rights of the parties thereto, and unless it informs him that his property has been attached or impounded the court does not obtain jurisdiction unless he appears, and a judgment entered upon such substituted service, without his appearance, is void.
    Appeal from Jasper Circuit Court . — Eon. D. E. Blair, Judge.
    Eeversed and remanded (with directions.)

      Owen (& Davis for appellants.
    (1) The judgment rendered in the case of Graves, Trustee, against J. W. Smith, is void, and likewise the execution issued thereunder, the sheriff’s sale thereunder, and the sheriff’s deed under which plaintiff claims and asserts title, for the reason that the court had no jurisdiction over the person of the defendant in that suit, (a) The order of publication issued in said cause runs in the name of J. W. Smith — the record title to the lands in question being in John W. pmith — and is, therefore, void. Notice by publication, in order to authorize a valid judgment, must run in the name of the defendant as it appears of record. White v. Gramley, 236' Mo. 647; Railroad v. Norris, 153 Mo. App. 667. (b) The order of publication issued in said cause does not follow the affidavit of P. M. Cummings, which alleges that “the aforesaid J. W. Smith has left the State of Missouri and is now a nonresident of the State •of Missouri,” and upon which it is based, but follows one of the grounds of attachment, to-wil, “that the defendant has absented himself from his usual place of abode in this State so that the ordinary process of law cannot be served upon him,” and is, therefore, void. An order of publication must show upon its face the true grounds upon which it is based; a false reeital renders it void. Tooker v. Leake, 146 Mo. 481; Harness v. Cravens, 126 Mo. 233; Kunzi v. Hickman, 243 Mo. 116; Parker v. Burton, 172 Mcv 85;' Crossland v. Admire, 149 Mo. 656. (c) The order of publication issued in said cause, if*based upon the affidavit of attachment, is void, because the affidavit of P. M. Cummings, filed April 16th, is inconsistent with and destroys the affidavit of attachment as a basis for an order of publication. Mansur v. Insurance Co., 136 Mo. App. 726; Hinkle v. Loveless, 204 Mo. 219; Harness v. Cravens, 126 Mo. 247. (d) The order of publication did not notify defendant that his lands had been, or were about to be, attached; or that he was called upon to defend an attachment suit, and is, therefore, void. It failed to notify him of the general nature and object of the suit. Sec. 1770, R. S. 1909. (e) The certified copy of the petition and lease thereto attached, the affidavit, and the summons served upon defendant in the State of Texas, did not notify him that he was called upon to defend an attachment suit, or that his property would be subjected to the lien of any judgment authorized upon ' “) ‘ [ ^ 1 such process. It was essential to the jurisdiction of the court that a certified copy of the petition and writ be served upon the defendant, as provided in Section 2316, or as provided in Section 1778, R. S. 1909; or that he be notified by publication, as provided in Section 1770. Moss v. Fitch, 212 Mo. 484; Given v. Harlow, 251 Mo. 231; Lasere v. Rochereau, 84 U. S. 437; 1 Shinn on Attachment, secs. 5, 217; 4 Cyc. 814. The remedy by attachment is purely statutory, and it is essential to the vadility of a judgment rendered in such a case that all of the essential requirements of the statute be substantially complied with. 8 Corpus Juris, sec. 121, p. 88; 1 Shinn on Attachment, sec. 8; Lackland v. Garesche, 56 Mo. 267; Hauser v. Murray, 256 Mo. 89; Plargadine v. Van Horn, 72’Mo. 370; Bryant v. Duffey, 128 Mo. 18. (f) The return of the sheriff to the writ of attachment does not show how he notified the tenant on the lands attached of the suit, whether verbally or in writing. It was essential to the jurisdiction of the court that the tenant of the land attached be served with notice of the suit, as provided in Sec. 2316, R. S. 1909. Siting v. Hendrickson, 193 Mo. 365; Walter v. Schofield, 167 Mo. 537; Miner’s Bank v. Kingston, 204 Mo. 687; Williams v. Dittenhofer, 188 Mo. 134; Allen v. Welch, 125 Mo. App. 278; Gates v. Tusten, 89 Mo. 21. (2.) The judgment rendered in the attachment suit is a general judgment, and is therefore void, and likewise all proceedings had thereunder. Priest v. Capitain, 236 Mo. 456; Givens v. Harlow, 251 Mo. 231. (3) The execution issued on the judgment in the attachment suit is a special execution and is therefore void. Givens v. Harlow, 251 Mo. 231.

      George Hubbert for respondent.
    (1) As against any collateral question concerning • the validity of the judgment in attachment and for execution against the land in question in this case, the attachment of the land by sheriff, under regular writ, based on bond with affidavit showing cause, followed by abstract duly* filed for record, proved by the sheriff’s return of the attachment and of the fact of dne notice to the actual tenant, gave the court jurisdiction to enforce the attachment lien, and no defect in subsequent proceedings could affect the force of the sheriff’s sale and deed to respondent as the purchaser under that judgment. Randall v. Snyder, 214 Mo. 32; Williams v. Lobban, 206 Mo. 409; Shea v. Shea, 154 Mo. 605; Johnson v. Gage, 57 Mo. 165; Freeman v. Thompson, 53 Mo. 194; Hardin v. Lee, 51 Mo. 244; Thompson v. Paddock, 148 Mo. App. 153; Cooper v. Reynolds, 10 Wall. (77 U. S.) 308, 19 L. Ed. 931; Payne v. Moreland, 15 Ohio, 435, 45 Am. Dec. 585. (2) Even if the judgment in the attachment case were only and merely general in its form, and there had been no regular service by publication or. summons to defendant, the judgment and writ of execution being really and specially against the attached property, the resulting sale and deed are not open here to collateral attack; but on the contrary, the issue of special execution and sale thereunder, pursuant to the attachment and lien thereby acquired, were valid in execution of the judgment, there was nothing to imply abandonment or waiver of the lien. Burnett v. McCluey, '92 .Mo, 236'; Hagerman v. Sutton, 91 Mo. 526; Freeman v. Thompson, 53 Mo. 194; Hardin v. Lee, 51 Mo. 241; Massey v. Scott, 49 Mo. 278; Johnson v. Holly, 27 Mo. 594; State ex rel. Vogle, 14 Mo. App. 190; Clark v. Holliday,.9 Mo. 711. (3) But, in truth, the judgment in attachment was expressly foi" execution against the attached property, and any expression indicating such intent stamped the judgment as special in its nature, and that was sufficient, for neither the condition of ■ the record, nor the status of the parties, nor the language of the judgment suggest any power or purpose of the court to enter merely a general judgment. Johnson v. Holly, 27 Mo. 504; R. S. 1909, secs. 2330, 2331; 6 C. J. p. 484, sec. 1144. (4) This court’s uniform decisions in Hardin v. Lee, 51 Mo. 241, and subsequent cases, holding that a judgment based on attachment» conferring jurisdiction of the land attached and executed through special execution and sheriff’s deed, cannot be collaterally attacked, has become a rale of property which this court never intended to disturb, and it should be protected by repudiation of the inconsistent ruling in White v. Gramley, 236 Mo. 647. Dunklin Co. v. Dunklin Court, 23 Mo. 449; Reed v. Ownby, 44 Mo. 204; Dunklin v. Chouteau, 120 Mo. 577; Lumber Co. v. Craig, 248 Mo. 319, 331. (5) The first affidavit, containing, as it did, cause for both attachment under Sec. 2294, sub-secs. 3 and 4, and publication, under Sec.. 1770, both processes might well be founded thereon; and the second affidavit, by which the former affidavit was supplemented, was a good foundation for summons in Texas under Sec. 1778. Avery v. Good, 114 Mo. 290; Lumber Co. v. Carroll, 255 Mo. 363. (6) The service of the writ of attachment, as proved by the sheriff’s return, was good and regular in form and substance, in exact accordance with the statute specifying what it should express, as to the “fact” of notice to tenant and statement of his “name,” in addition to the statement of all other acts prescribed for effective levy of the writ on land. Rl S. 1909, see. 2316, sub-div. 3. (7) The fact that publication or summons was after jurisdiction had been acquired over the property by execution of the writ of attachment, was immaterial and did not invalidate or defeat the exercise of jurisdiction. Tufts v. Yolkening, 122 Mo. 631. (8) The suit, publication and service of summons in Texas, as against John Smith - by the name of J. W. Smith, to which he answered when admitting his identity on the witness stand, and by which he was known as appears by the evidence, was good for all purposes of the attachment proceeding, judgment, sale and deed, even if publication was necessary. Mosely v. Reily, 126 Mo. 127; Elting v. Gould, 96 Mo. 541; Martin v. Barron, 37 Mo. 300; Durfee v. Moran, 57 Mo. 374; Howard v. Brown, 197 Mo. 36, 47; Simmons v. Mo. Pac. Ry. Co., 19 Mo. App. 545; Johnson v. Page, 57 Mo. 165.
   BOND, C. J.

Suit of the purchaser under an execution sale to set aside an alleged fraudulent conveyance of the judgment deht-or.

In 1910 defendant John W. Smith (J. "W. Smith) purchased a farm in Newton County, Missouri, and placed his father in possession thereof as teiiant, care for the property being the consideration for its use. In June, 1913, John W. Smith mortgaged this land by two deeds of trust, one for $650 with interest, payable five years from date; the second for $65 with interest, payable to George B. Hulse, maturing at a like date, naming Horace Ruark as trustee, and containing power of sale for foreclosure by the trustee on default of payment.

, Defendant Smith, having become indebted to George Graves as guarantor of a theatre lease, and having refused to pay said debt, said Graves, on January 21, 1914, sued out a writ of attachment, directed against J. W. Smith and his property.-

On January 24, 1914, John W. Smith executed a mortgage and deed of trust on the land in controversy to secure a debt to one G. S. Rowe of $1425, Lee Rowe being named as trustee therein. On January 25th, said mortgage and deed' of trust were filed for record at Neosho, Missouri.

About this time Horace Ruark, attorney for John W. Smith, informed the sheriff that John W. Smith was not a resident of Missouri, but of Texas, and the sheriff thereupon amended a former return of personal service ai the home of said Smith as follows:

I hereby certify that I executed the -within writ in the County oi Newton and State of Missouri, by making diligent search for the within named J. W. Smith and failing to find him in my county, I therefore return this writ not served, this 16th day of April, 1914.

Thereupon the clerk of said court, in vacation, mad° an order of publication, which was duly publisfipd, notifying Smith of “a suit on account of rent due under a lease covering a certain theatre building” having been brought against him.

Ordinary summons was also issued, directed to the sheriff of Wichita County, Texas, whose affidavit, among other things, recites:

Personal Service on Non-Resident.
State of Texas, County of Wichita: ss.
In the Circuit Court. Geo. A. Graves et al., Plaintiffs, against J. W. Smith, Defendant.
Being first duly sworn with reference to the above entitled action, the undersigned R. L. Randolph, in his hereinafter named official capacity says that ... he did for the plaintiff, duly and personally serve on J. W. Smith, as defendant in the above entitled cause, who then resided in said Wichita Falls, County of Wichita, a duly certified copy of the petition in said cause, together with a copy of the original writ of summons therein, by delivering to each of the said last above named defendant in person, at said Wichita Falls, County of Wichita, on said day, true duplicate copies of the following instruments, viz.: (1) the hereto attached copy of said petition and (2) the plaintiff’s affidavit showing said defendant to be resident as aforesaid and non-resident of the State of Missouri, and (3) the hereto attached original writ as a writ of summons, and (4) the hereto attached certificate and attestation verifying each and all of the aforesaid copies . . .
R. Ai. Randolph,
Sheriff of Wichita County, State of Texas.

The judgment which was rendered in the attachment suit concluded as follows: *

“ Wherefore it is considered and adjudged by the court that the plaintiff recover of the defendant the sum of twelve hundred and fifty dollars and the costs in this behalf expended, and have execution against the property and effects attached in this suit.” ,

Execution issued, under which the sheriff sold the defendant’s property in controversy for $100 to George A. Graves, the plaintiff in this' suit .

Default was made in the payment of interest on the $65 mortgage, payable to George Hulse, and after due publication of notice of foreclosure, on May 11, 1914, the trustee therein conveyed the land to Mae Smith, sister of John'Smith, for $80. Both are defendants in this suit.

Prom a judgment rendered in favor of plaintiff in the present action, defendants J. W. Smith and Mae Smith appealed.

I. The decisive question in this case is whether or not the judgment rendered in the attachment suit, under which the land in controversy was sold to plaintiff, was void on its face and hence open to that defense in the present action.

In order to acquire jurisdiction and validate a personal judgment rendered in its exercise, the court must have the subject-matter of the suit within its judicial cognizance and the defendant before it by due service of summons or by his voluntary appearance. These data are indispensable to the rendition of a general judgment against the defendant for money or property. On the other hand, when no personal or general judgment is sought or can be obtained and the suit is brought only to charge or fix a lien upon lands of a non-resident defendant, the statute provides a method of subjecting the res by attachment of his property and notice to him by publication in a prescribed form, or by substituted service. Unless both of these statutory prerequisites are complied with, the local court acquires no jurisdiction to proceed and any judgment rendered by it, special or general, is an absolute nullity and open to collateral attack in any other court where rights thereunder are attempted to be enforced. The reason is that the statute in such cases gives the couxt no power to act unless the property is seized by a writ of attachment and the non-resident owner is apprised of that fact by the publication of a notice in the .form prescribed in the statute or the substitute personal service permitted by the statute. [R. S. 1909, secs. 1770, 1778; Moss v. Pitch, 212 Mo. l. c. 497; Givens v. Harlow, 251 Mo. l. c. 243.]

The crux of this case, under the facts shown in the record, is whether or not the suit in attachment against J W. Smith was conducted in compliance with the statute in the matter of notice by publication or service of substituted process on him in Wichita County, Texas. The learned trial court held these notifications to be sufficient to warrant a1 judgment of $1250 against the defendant in that case and for an award of execution therefor against the property attached in that cause (as appears from the copy set out above.)

We cannot assent to that view. The order of publication supra simply recited the commencement of the suit “on account of rent due under a lease covering a theatre building” and warned the non-resident to appear and defend.

The statute requires in attachment suits that the order of publication shall state “briefly the object and general nature of the petition.” [R. S. 1909, see. 1770.] The substituted foreign service permitted in another section (Sec. 1778) is only a statutory alternative for notice by publication and has been held to have “no broader scope” and that it was intended to inform the non-resident that the court “had reized the res” and would proceed to adjudge the rights of the parties “in and to the res.” [Moss v. Fitch, 212 Mo. l. c. 497, 498.] It necessarily follows that the notice of substituted service should be substantially the same as that required by the statute for publication.

No hint was given to defendant in this case, -either by publication or in extra-territorial personal service, that his property had been attached or impounded in any way. The action in which the judgment sued on was rendered was one begun by attachment of the property of a non-resident. The writ of attachment issuable in that case should have contained, in addition to a command to levy upon the lands or so much thereof as would satisfy the verified claim of the plaintiff, a further order of summons to be served upon the defendant requiring him to appeár and answer the action of plaintiff. [R. S. 1909, sec. 2313.]

Obviously no notice by publication could have been given to- the defendant in that action which would have complied with the letter and spirit of the statute'requiring such notice to state “the object and general nature of the petition” or suit which did not distinctly inform him that it was one by attachment of his property. The sole ground upon which any recovery could have been had in the original suit was the right to seize the property of defendant and subject it to the satisfaction of the verified demand of plaintiff under the authority given by the statute applicable to attachment and other suits against non-residents. Plaintiff could have had no other action upon, a breach of contract or guaranty wherein he could have recovered a personal judgment against the non-resident defendant by any form of publication or personal service. The only possible redress which plaintiff could have had was against specific property in this State as provided by statute. It is, therefore, clear to a demonstration that the action begun against the nonresident defendant could not have been one to recover a certain sum for the breach of a guaranty (as stated in the order of publication), for the court was powerless to render any such redress. Hence the notice which apprised defendant that such was the nature of the action against him, was a misleading statement and did not correctly describe the “object and general nature” of the suit, which was to impound ■certain property and apply the proceeds of a sale thereof to the claim of plaintiff against defendant. It ’necessarily follows that the only way the plaintiff in the attachment suit could have complied with the statutory direction as to notice, was to have inserted in the order of publication a statement setting forth the real nature of his suit: i. e. to subject by attachment the lands of a non-resident debtor to the payment of a verified demand; and it is an obvious corollary of this that he could not have complied with the requirement of the statute, if he adopted substituted service instead of publication, unless he had provided for a similar notice of the nature of the suit, either by employing the form' of original writ of attachment prescribed by statute (R. S. 1909, sec. 2311), or in some other way have notified the defendant that the foreign personal service on him was to defend an attachment suit.

We hold that both the order of publication in this case and the attempted substituted service were fatally defective under the statutes authorizing them and could give the court no jurisdiction to render the judgment in the attachment suit. It follows that the sale to plaintiff under a void judgment vested him with no title to the property in dispute.

II. This conclusion renders it unnecessary to discuss other grounds of objection to the judgment of the trial court, including the contention that the judgment rendered in the attachment suit was a general judgment. [Priest v. Capitain, 236 Mo. l. c. 457; Givens v. Harlow, 251 Mo. 231.]

The judgment of the trial court in this case was erroneous. It is, therefore, reversed and the cause remanded with directions to dismiss plaintiff’s suit. It is so ordered.

All concur except Woodson, Jnot sitting.