Southern Missouri & Arkansas Railroad Co. v. Wyatt
| Citation | 122 S.W. 688,223 Mo. 347 |
| Parties | SOUTHERN MISSOURI & ARKANSAS RAILROAD COMPANY and ST. LOUIS, MEMPHIS & SOUTHEASTERN RAILROAD COMPANY, Appellant, v. J. S. WYATT |
| Decision Date | 23 November 1909 |
| Court | United States State Supreme Court of Missouri |
Appeal from Ripley Circuit Court. -- Hon. J. L. Fort, Judge.
Affirmed.
E. H Seneff, L. F. Parker, Jas. Orchard and W. F. Evans for appellant.
(1) The motion in arrest of judgment should have been sustained. The verdict of the commissioners was never reviewed by the court never set aside or affirmed. Under R. S. 1889, Sec. 1268, it is necessary for the court to review the report of the commissioners and to set the same aside on a proper showing. The finding of the commissioners appointed to appraise land to be condemned for railroad purposes, is not conclusive upon the circuit court, but, on written exceptions filed by either party, the court may examine the evidence and if the verdict of the commissioners was wrong may set it aside. Bridge Co. v. Schabacker, 49 Mo. 555. In the case at bar no such inquiry was made and no order of the court was made setting aside the verdict of the commissioners, so the finding of the commissioners is still in force. Upon the exceptions filed to the report of commissioners appointed to condemn land for railroad purposes the court should review by evidence, the action of the commissioners and supervise their finding so as to do substantial justice. The court may approve or reject the report, but cannot alter it. Bridge Co. v. Ringe, 58 Mo. 491. But the court must either approve or reject. In this case it did neither. City of St. Louis v. Lannigan, 97 Mo. 175; Railroad v. Richardson, 46 Mo. 456; Railroad v. McGrew, 113 Mo. 390. (2) The verdict, being a general verdict, cannot stand. The two tracts are located about two miles apart and are not contiguous. Besides, the petition describes the two tracts separately and asks for separate finding on each tract. The commissioners, in making their report, made a separate finding on each tract. Hence, the verdict of the jury should have been a separate finding on each tract, as each tract constituted a separate cause of action. Hence, plaintiffs' motion for a new trial, also in arrest of judgment, should have been sustained. Silcox v. Martin, 64 Mo.App. 330; Brick v. Railroad, 83 Mo. 391; State v. Harman, 106 Mo. 657.
Plaintiff, the Southern Missouri & Arkansas Railroad Company, instituted this suit in the circuit court of Ripley county to condemn a right of way for its railroad through the lands of a number of parties, among them the respondent, J. S. Wyatt. The latter owned two tracts of land through which said railroad company attempted to condemn a right of way, one of which, designated as parcel No. 7, is described in the petition as the south half of the northeast quarter of section 16, township 22, range 4, east; and the other, parcel No. 9, is described as the north half of the southeast quarter and lot 1 of the southwest quarter of section 19, township 22, range 4, east.
Upon the petition of the railroad company, commissioners were appointed by the circuit court to view and to assess the damages to the property through which the proposed road was to run. On the 16th day of October, 1901, the commissioners made their report, which was filed in the office of the clerk of said court, in which report they assessed the damages to tract No. 7 at $ 75, and assessed the damages to tract No. 9 at $ 49.
On October 31, 1901, Wyatt filed his exceptions to the report of the commissioners, and asked that said report be set aside and that a jury trial be awarded him, and that his damages be inquired into and assessed by a jury.
After the petition was filed, and before the cause was tried, the St. Louis, Memphis & Southeastern Railroad Company was, on its motion, made a party plaintiff, it having succeeded to all the rights of the plaintiff, the Southern Missouri & Arkansas Railroad Company.
Wyatt recovered a verdict and judgment for $ 800, from which judgment, after unsuccessful motions for a new trial and in arrest, plaintiff appealed.
The case for some reason found its way to the St. Louis Court of Appeals, and after argument and submission there, an opinion was handed down by Bland, P. J., affirming the judgment on the ground that the printed abstract failed to show that the bill of exceptions had ever been made a part of the record. Thereafter a motion for a rehearing was filed, and the opinion was withdrawn, and the cause transferred to this court on the ground that the Court of Appeals had no jurisdiction of the appeal.
I. The cause was properly transferred to this court. It is a suit by a railroad company to condemn land for its right of way, and in such cases it has many times been held that appellate jurisdiction is in the Supreme Court. Title to real estate is involved in such a case. [City of Tarkio v. Clark, 186 Mo. 285, 85 S.W. 329; Kansas City v. Railroad, 187 Mo. l46, 86 S.W. 190; Baubie v. Ossman, 142 Mo. 499, 44 S.W. 338; State ex rel. v. Rombauer, 124 Mo. 598, 28 S.W. 75; State ex rel. v. McCutchan, 119 Mo.App. 69, 96 S.W. 251; Railroad v. Eubank, 55 Mo.App. 335; Railroad v. McGregor, 53 Mo.App. 366.]
II. We cannot consider the bill of exceptions in this case, for the reason that the printed abstract does not show that the bill was ever made a part of the record. The abstract shows that an appeal to this court was ordered on April 11, 1902, and that appellant was "given ninety days in which to perfect and file a bill of exceptions herein." Immediately following this is another record entry which recites that on July 7, 1902, "for good cause shown, the time for filing bill of exceptions is hereby extended for a period of sixty days from the expiration of the first order." Then follows immediately the evidence of witnesses, and after about sixty pages of testimony immediately follow in order the instructions, the verdict, motion for new trial, motion in arrest, the affidavit for an appeal, the order allowing ninety days to file a bill of exceptions, and then a recital that on July 7, 1902, a further time of sixty days was allowed, then a recital that appellant "presents his bill of exceptions and prays the same may be signed, sealed and made a part of the record, which is accordingly done on this 16th day of August, 1902." Then follow the signature and approval of the judge, and the certificate of the clerk that the bill was filed on that day. It will be observed that it is only the bill of exceptions that recites that it was filed within the sixty days allowed. The record proper does not so recite. A bill of exceptions does not prove itself. It becomes a part of the record only when the record proper shows it was filed in time. The last record entry proper in this case shows that appellant was, on July 7th, given an extension of sixty days in which to file his bill. Matters of record proper have no place in the bill of exceptions, and a recital thereof therein adds nothing to the validity of the bill. [Milling Co. v. St. Louis, 222 Mo. 306, 121 S.W. 112; Hogan v. Hinchey, 195 Mo. 527, 94 S.W. 522; Harding v. Bedoll, 202 Mo. 625, 100 S.W. 638; Groves v. Terry, 219 Mo. 595, 117 S.W. 1167; Shemwell v. McKinney, 214 Mo. 692, 114 S.W. 1083; Stark v. Zehnder, 204 Mo. 442, 102 S.W. 992; Walser v. Wear, 128 Mo. 652, 31 S.W. 37; Pennowfsky v. Coerver, 205 Mo. 135, 103 S.W. 542; Coleman v. Roberts, 214 Mo. 634, 114 S.W. 39.]
But though there is no bill of exceptions, the judgment cannot be affirmed if the abstract shows errors in the record proper, jurisdictional in character or otherwise. [Thomasson v. Insurance Co., 114 Mo.App. 109, 89 S.W. 564.]
Appellant assigns error as to two matters of record proper.
III. Appellant contends that "the verdict of the commissioners was never reviewed by the court, and was never set aside or affirmed."
Section 1268, Revised Statutes 1899, says that
The record shows that respondent did file his exceptions to the commissioners' report, and asked therein that "said report as to him, may be set aside, and that a jury trial may be awarded him and his damages inquired into by a jury, and assessed to him by a jury."
Appellant contends that before any jury trial can be had in such case, the record must show affirmatively that the court set aside the commissioners' report, and that until set aside it is still in force, and that the record does not show in this case that the report was set aside. This assignment goes to a jurisdictional record matter, for, if appellant's contention is correct, then until the report of the commissioners was set aside by a formal order, that report remained in full force and effect, and no jury could be called to assess defendant's damages. The point, going to the jurisdiction of the court to order a jury trial, can, therefore, be considered, whether or not there was a motion in arrest.
1. The appellant's abstract shows this record entry: "Now at this day it is ordered by the court that the report of the commissioners in the above entitled cause be in all things confirmed except as to defendants, J. S. Wyatt and C. E McKinney." This was a sufficient order setting aside the report of the commissioners as to J. S. Wyatt, the respondent. It is a formal record order refusing to confirm that report...
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