City of St. Louis v. Lanigan

Decision Date04 February 1889
Citation10 S.W. 475,97 Mo. 175
PartiesThe City of St. Louis v. Lanigan et al.; Ratz, Appellant
CourtMissouri Supreme Court

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Affirmed.

Walter F. McEntyre for appellant.

(1) The amount of damages allowed to appellant is inadequate and insufficient compensation for the loss of his property. (2) The circuit court committed error in holding itself "governed in a measure by rules similar to those that govern it in reviewing the verdict of a jury," and that the report should be set "aside only when it clearly appears that it is founded in mistake, fraud or prejudice." Bridge Co. v. Schaubacher, 49 Mo 555; Bridge Co. v. Ring, 58 Mo. 491. (3) The judgment should be reversed because it is rendered against Henry Learned and Patrick McMahon, who were made parties defendant, but were before the court neither by service of process, nor publication, nor by entry of appearance. Smith v. Rollins, 25 Mo. 408; Lenox v Clark, 52 Mo. 115; County v. Harmon, 59 Mo. 165. (4) The judgment is erroneous and should be reversed because the petition shows on its face that the defendant Anna M. O'Fallon is a married woman and the wife of James J. O'Fallon, who was not made a party. Charter of St. Louis, art. 6, sec. 2; 2 R. S., 1879, p. 1606.

Leverett Bell, W. F. Broadhead and Alex. Martin for respondent.

(1) So long as the court had jurisdiction of the lands and of the owners by service, it is immaterial that parties not interested were left out or superfluously included. This fact would not impeach the judgment of condemnation, which operates on the land alone, and imposes no obligation in personam on the parties. Williams v. Hudson, 93 Mo. 524; Hagerman v. Sutton, 91 Mo. 519; Hoskinson v. Adkins, 77 Mo. 573; Vonschrader v. Taylor, 7 Mo.App. 361; Voorhis v. Gamble, 6 Mo.App. 1; Mead v. Brown, 65 Mo. 552. (2) The report of the commissioners is not against the evidence.

OPINION

Sherwood, J.

This proceeding was instituted in the circuit court of St. Louis city for the purpose of extending and opening High street, which is numerically Twelfth street, from Lucas avenue to Franklin avenue. As might be readily suspected by those acquainted with the city of St. Louis in that locality, the opening of the street there involved the property rights and interests of a large number of defendant owners, and the record in consequence is very voluminous.

On the coming in of the report of the commissioners, three of the land-owners excepted. All of them, however, abandoned the contest as to the insufficiency of the damages awarded each of them, but Peter Ratz, who brings this cause here by appeal, alleging, as in the court below, the insufficiency of the damages awarded him. The exceptions came on to be heard; the court heard testimony, and after carefully considering the same, overruled the exceptions and confirmed the report of the commissioners.

I. The complaint made here is, that the order of the court overruling defendant's exceptions "is against the weight of evidence." It has been established by a long line of decisions, so numerous as not to require their citation, that in law cases, aside from those where mistake, fraud, prejudice or passion manifest themselves in the rendition of a verdict, that this court will not interfere by weighing the evidence on which the verdict is founded. Obviously, the same rule must obtain in all other law cases. The court below has advantages which this court does not possess, and cannot possess, in relation to the demeanor of witnesses who testify respecting the litigated matter. Even in equity cases, we defer somewhat to the views of the trial court.

Besides, in cases of the sort now under consideration, it is to be observed that the judgment of the commissioners is not formed exclusively upon evidence submitted to them; they are required to view the premises, and they have the advantage of an actual personal inspection; and they are to be guided to some extent by that. Selected because of their capacity and fitness for the position they are called upon to fill; required to be disinterested; sworn to a faithful discharge of the duties imposed upon them, their report should not be set aside but upon satisfactory grounds; the testimony of witnesses as to value, whether heard before the commissioners, or subsequently, by the court on exceptions filed, though entitled to due consideration, is not controlling; and "unless the court is clearly satisfied that they have erred in the principles upon which they have made their appraisal, there is nothing for review and their report should not be disturbed." Railroad v. Richardson, 45 Mo. 466; Railroad v. Campbell, 62 Mo. 585. Reading the testimony in this cause, in the light of the authorities cited, no reason is seen calling upon this court to differ from the conclusion reached by the trial court as to the merits.

II. But it is urged that the judgment herein should be reversed because rendered against Henry Leamed and Patrick McMahon who were parties defendant, but who were not served with process, nor by publication, nor did they enter appearance to the action; and the proceedings were never dismissed as to them, and that it should also be reversed, because though Anna M. O'Fallon was duly served with process, yet that she is described as the wife of James J. O'Fallon, and the latter was not made a party. In relation to Patrick McMahon, the record shows that "Mrs. P. McMahon" entered her voluntary appearance to the action, and in absence of aught to the contrary in the record appearing, it must be taken for granted that she was the McMahon mentioned in the petition, writ and judgment, and the...

To continue reading

Request your trial
37 cases
  • Kansas City v. Bacon
    • United States
    • Missouri Supreme Court
    • December 23, 1898
    ... ... (6) Property exempt from general ... taxation is not exempt from local assessments. Sheehan v ... Hospital, 50 Mo. 156; Farrar v. St. Louis, 80 ... Mo. 379; State v. City of Kansas, 89 Mo. 36; ... City to use v. Eddy, 123 Mo. 546. (7) Railroad ... rights of way should have been ... Shoemaker v ... U.S. 147 U.S. 306; Railroad v. Richardson, 45 ... Mo. 468; St. Louis v. Lanigan, 97 Mo. 178. (11) The ... jury had no authority to assess property within the benefit ... district which they did not deem benefited, nor does the ... ...
  • In re Condemnation of Independence Avenue Boulevard v. Smart
    • United States
    • Missouri Supreme Court
    • April 30, 1895
    ... 30 S.W. 773 128 Mo. 272 In Re Condemnation of Independence Avenue Boulevard; Kansas City v. Smart et al., Appellants Supreme Court of Missouri April 30, 1895 ...           ... routes and streets, etc. St. Louis v. Frank, 78 Mo ... 41; St. Louis v. Gleason, 93 Mo. 33; Fore v ... Hoke, 48 Mo.App. 254; ... to appellants. Kansas City v. Hill, 80 Mo. 523; ... St. Louis v. Lanigan, 97 Mo. 175; Railroad v ... Fowler, 113 Mo. 458. Third. The motion filed by ... appellants ... ...
  • State ex rel. Robertson v. Hope
    • United States
    • Missouri Supreme Court
    • March 13, 1894
    ... ... sufficiency. Moore v. Railroad, 73 Mo. 438; ... Grove v. Kansas City, 75 Mo. 672; Fulkerson v ... Mitchell, 82 Mo. 13; Baum v. Fryrear, 85 Mo ... 154; Bank v. York, 89 Mo. 369; State v. Hert; 89 Mo ... 590; Caruth v. Richeson, 96 Mo. 186; City of St ... Louis v. Lanigan, 97 Mo. 175; Harrison Wire Co. v ... Hall, 97 Mo. 289; Krider v. Milner, 99 Mo. 145; ... ...
  • Osage Land Co. v. Kansas City
    • United States
    • Missouri Supreme Court
    • April 2, 1945
    ... ... Ed. 1897; Sec ... 4, Art. II, Mo. Const.; Sec. 3228, R.S. 1939; Webster v ... Kansas City So. Ry., 116 Mo. 114; Martin v. St ... Louis, 139 Mo. 246; Plum v. Kansas City, 101 Mo. 525; ... St. Louis v. Senter Comm. Co., 343 Mo. 1075, 124 ... S.W.2d 1180. (2) Private property shall ... judgments and payment upon one award would not toll the ... statute as to others. City of Kansas v. Hill, 80 Mo ... 523; St. Louis v. Lanigan, 97 Mo. 175; Kansas ... City v. Smart, 128 Mo. 272; Neenan v. St ... Joseph, 126 Mo. 89; Kansas City v. Block, 175 ... Mo. 433, 74 S.W ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT