This is an original proceeding in which relator, charged by information in the Circuit Court of Chariton County with assault with intent to kill, asks us to prohibit respondents J.E. Montgomery and J.C. Collett, who are the Circuit Judge and the Prosecuting Attorney, respectively, of said county, from further entertaining and prosecuting said charge, on the ground that the alleged *Page 662 crime was not committed in Chariton County, and said Circuit Court of Chariton County is, therefore, without jurisdiction.
Relator's amended petition describes with particularity the land on which the alleged crime was committed with reference to course of the main channel of the Missouri River both before and after June, 1879, when the stream is alleged to have "perceptibly and abruptly changed its course" between the counties of Saline and Chariton; alleges that the boundary between the counties of Chariton and Saline was fixed as the main channel of the Missouri River by the statute of 1865; and further alleges that after said change said land, although formerly south of the main channel of the Missouri River, was and is now north of said main channel, and not within the boundary of Chariton County. Said petition further alleges that unless prohibited from so doing said circuit court will proceed with the trial of said cause, and that relator has no adequate remedy at law because said prosecution in Chariton County will not bar a similar prosecution for the same alleged offense in Saline County. Attached to the petition is a certified copy of said information, and of the Chariton County Circuit Court records showing the filing date of said information and the pendency thereof in said Circuit Court of Chariton County, at Keytesville, Missouri.
Respondents waived issuance and service of process and consented to the issuance of the preliminary rule, and on application to this court Chariton County was permitted to intervene. Application for permission to intervene was filed by a number of alleged landowners, which application was denied, but their attorneys were given permission to file briefs as amicicuriae.
Respondents' return, after admitting the formal allegations of relator's petition, alleges that relator has an adequate remedy by means of appeal from any judgment or conviction that might be entered against him, and further alleges that he has not attacked or challenged or by any means raised the question of jurisdiction in the Circuit Court of Chariton County, Missouri; that relator's proceeding "is an attempt to decide matters purely of a civil nature, to-wit, a dispute regarding the ownership of lands in the Missouri River bottoms, and to decide whether said lands are located in said Chariton County or in Saline County, Missouri; and that such an issue cannot and should not be decided in a proceeding of this character."
Chariton County, intervener, filed return making similar admissions and pleading like defenses. Said return further specifically denies relator's allegations as to the location of the land on which the alleged offense was committed; denies that said land was ever at any time south of the main channel of the Missouri River, or south of the boundary line between Saline and Chariton counties, or within the boundaries of Saline County, and denies that said land is or *Page 663 has ever been a part of the territorial sovereignty of Saline County. This return further avers that at the time of the alleged offense Ezra Williams was the owner of Lots 4, 5 and 6 in the Southeast Quarter of Section 34, Township 54, Range 19, Chariton County, Missouri; that said land is shown to be in Chariton County, Missouri, and north of the Missouri River, by plat and survey made by A.F. Arrington, County Surveyor of Chariton County, Missouri, and on file in the office of the Clerk of the County Court of said Chariton County, and that no such land is described, platted or shown upon any map or plat made and filed by Charles H. Swift, County Surveyor of Saline County, and filed in the office of the County Clerk of Saline County; that in the year 18__ the boundary line between Chariton and Saline counties was fixed and defined by the Legislature "in the middle of the main channel" of the Missouri River; that in the month of June, 1879, the Missouri River cut through south of the above described Ezra Williams land, and following this "avulsion" "gradually adjusted itself to a channel" south of the aforesaid land, and "that notwithstanding the fact that the present center of the main channel of the Missouri River may not be located along the same line where the same was located at the time of the fixing of the boundary line between Chariton County and Saline County by act of the Legislature, as aforesaid, and may not be along the same line where the center of the main channel of the Missouri River was located at the time of the adoption of the Constitution in 1875, and notwithstanding the fact, if it be a fact, that the lands belonging to Ezra Williams, and other lands similarly situated, were in whole or in part south of a line being the center of the main channel of the Missouri River between Saline and Chariton counties in 1875, the lands belonging to Ezra Williams, and other lands surrounding, adjacent and contiguous thereto, are a part of the territory of Chariton County, Missouri, and the boundary line between Chariton County, Missouri, and Saline County, Missouri, is a line along the center of the main channel of the Missouri River where the same now is." Intervener affirmatively pleads prescription, laches, acquiescence and estoppel.
Relator's reply to both returns consists of a general denial, coupled with admissions as to the lands owned by Ezra Williams, that according to the general statutes of Missouri, 1872, the boundary line between Chariton and Saline counties was fixed as "the middle of the main channel of the Missouri River," and that following an avulsion in June, 1879, the Missouri River gradually adjusted itself to the channel described in intervener's return. Relator thereafter filed a motion to strike out parts of intervener's return relating to estoppel, laches, etc. Certain facts are stipulated as in the case by relator and intervener to which we shall hereafter refer. *Page 664
Counsel for intervener first suggests that our writ should not issue because it does not appear that relator challenged the jurisdiction of the trial court before applying here for writ of prohibition. It is generally held that a writ of prohibition will not be directed to an inferior court on the ground of lack of jurisdiction unless in some manner its attention has first been called thereto. [State ex rel. Brncic v. Huck, 296 Mo. l.c. 382; State ex rel. Burns v. Shain, 297 Mo. l.c. 381.] But, there are well known exceptions to this rule, and in McEntee v. Bright,224 Mo. 514, we said that "it has never been a hard-and-fast rule in this State." Also, in State ex rel. McCaffery v. Aloe,152 Mo. 466, we held that "it is not a jurisdictional requirement." Certainly where the respondents, as in this case, made return admitting, by failure to deny, relator's allegation that unless prohibited from so doing they will proceed with the trial of the case, the fact that the objection was not previously raised becomes immaterial. [State ex rel. Mo. Pac. Ry. Co. v. Williams,221 Mo. 227.]
The determination of the venue is incident to the trial of a criminal case. It is apparent that in the instant case the jurisdiction of the circuit court depends upon contested allegations of fact which that court is competent to inquire into and determine. Ordinarily, in such cases prohibition does not issue. [Coleman v. Dalton, 71 Mo. App. l.c. 24; State v. Withrow,141 Mo. 69; State ex rel. Am. Pigment and Chem. Co. v. Shields, 237 Mo. l.c. 334; Ex parte Southwestern Surety Ins. Co.,247 U.S. 19; 19 Am. Eng. Ency. Law, 271; 16 Ency. Pl. Practice, 1127.] It is true that respondents' return does not deny or otherwise put in issue any of the allegations of relator's petition to the effect that the alleged offense was not committed within the boundaries of Chariton County. Proceedings of this sort which originate in this court are governed not by the code but by the general law on the subject (State ex rel. v. Eby, 170 Mo. l.c. 527), and in such cases the common law practice prevails. [State ex rel. Conran v. Williams, 96 Mo. l.c. 18.] Also, according to the common law, as well as under our Practice Act, every pleading is taken to confess such traversable matters alleged on the other side as it does not traverse. [Perry on Common Law Pleading, 281; Curl Hardwick v. Mann, 4 Mo. 273; Sec. 2059, R.S. 1919.] Furthermore, respondents did not join in the statements of facts agreed to by relator and intervener and they are not bound thereby. It thus appears on the face of the record that as between relator and respondents as far as this prosecution is concerned it stands admitted that the trial court is without jurisdiction to hear and determine the case. But it also appears from intervener's return and relator's reply, as well as their agreed statements of facts, that these parties have sought to frame issues that would require us to make some adjudication affecting or defining the territorial boundaries of Chariton *Page 665 and Saline counties, and affecting muniments of title issuing from said counties, although neither Saline County nor the land owners that would be affected are parties to this suit. Issues thus designed to affect such public and private interests should certainly not be disposed of on a mere technical rule of pleading. Relator has an adequate remedy at law in that he can challenge the jurisdiction of the circuit court by plea in abatement. Our careful consideration of the entire record forces us to conclude that a proper exercise of our discretion calls for a denial of the writ.
For the reasons above stated our preliminary writ heretofore issued is quashed and the proceeding dismissed. All concur, except Graves, J., who dissents; Gantt, J., not sitting.