151 S.W. 724 (Mo. 1912), State ex rel. Tuller v. Seehorn

Citation151 S.W. 724, 246 Mo. 568
Opinion JudgeKENNISH, J.
Party NameTHE STATE ex rel. BERT H. TULLER et al. v. THOMAS J. SEEHORN, Judge
AttorneyC. S. McLane, W. C. Culbertson and R. W. Crimm for relators.
Judge PanelKENNISH, J. Valliant, C. J., Lamm, Ferriss and Brown, JJ., concur; Graves, J., concurs in the result; Woodson, J., not sitting.
Case DateDecember 10, 1912
CourtSupreme Court of Missouri

Page 724

151 S.W. 724 (Mo. 1912)

246 Mo. 568

THE STATE ex rel. BERT H. TULLER et al.

v.

THOMAS J. SEEHORN, Judge

Supreme Court of Missouri

December 10, 1912

Writ allowed.

C. S. McLane, W. C. Culbertson and R. W. Crimm for relators.

(1) The charter of Kansas City does not provide for an appeal in a supplemental proceeding begun in the municipal court of Kansas City from that court to the circuit court, and the respondent has no jurisdiction over the supplemental proceeding over which he has assumed jurisdiction. Sec. 23, Art. 6, Charter; Sec. 6, Art. 6, Charter; 1 Bouvier's Law Dictionary, 149; Wiscaret v. D'Auchy, 3 Dallas (U.S.), 327; Aldridge v. Spears, 101 Mo. 406; Owens v. Matthews, 226 Mo. 78; Drainage District v. Railroad, 216 Mo. 709; Wilson v. Township, 23 Mo. 416; State ex rel. v. Bland, 189 Mo. 208; State v. Thayer, 158 Mo. 37; State v. Clipper, 142 Mo. 474; State v. Carr, 142 Mo. 607; State v. Cornelius, 143 Mo. 179; State v. Van Brunt, 147 Mo. 20; State v. Beagles, 174 Mo. 624; State v. Rozelle, 174 Mo. 632. (2) The respondent has no jurisdiction to award damages for land taken for a street because the ordinance under which he is assuming to act does not ask to have such damages awarded. Tarkio v. Clark, 186 Mo. 297; St. Louis v. Brinckwirth, 204 Mo. 280; Munday v. Vail, 34 N.J.L. 422; Corwithe v. Griffing, 21 Barb. (N.Y.) 14; Hope v. Blair, 105 Mo. 93; Stark v. Kirchgraber, 186 Mo. 633; King v. Chase, 15 N.H. 16; Reynolds v. Stockton, 140 U.S. 269; Unfried v. Heberer, 63 Ind. 72; McFadden v. Ross, 108 Ind. 517; 23 Cyc. 818; Waldron v. Harvey, 54 W.Va. 613; Newman v. Bullock, 23 Colo. 222; Sache v. Wallace, 101 Minn. 172; Charles v. White, 214 Mo. 208; Sec. 23, Art. 6, Charter. (3) Prohibition will lie if the supplemental proceeding cannot be taken to the circuit court by an appeal, and will also lie, if there is a right of appeal, to prevent the respondent from exercising any jurisdiction over matters not brought before the court by the supplemental ordinance. State ex rel. v. Bright, 224 Mo. 535; State ex rel. v. Williams, 221 Mo. 246, 266; State ex rel. v. Reynolds, 209 Mo. 191; State ex rel. v. Fort, 210 Mo. 525; State ex rel. v. Bradley, 193 Mo. 46; State ex rel. v. Sale, 188 Mo. 493; State ex rel. v. Fort, 178 Mo. 518.

For respondent's brief, see under State ex rel. v. Seehorn, ante, p. 541.

KENNISH, J. Valliant, C. J., Lamm, Ferriss and Brown, JJ., concur; Graves, J., concurs in the result; Woodson, J., not sitting.

OPINION

Page 725

[246 Mo. 572] In Banc.

Prohibition.

KENNISH, J.

-- Relators filed their petition in this court praying the issuance of a writ of prohibition against the respondent as judge of Division No. 3 of the circuit court of Jackson county. The cause sought to be prohibited is a condemnation proceeding now pending in said Division No. 3, in which the property of relators is proposed to be taken for public use in widening Sixth street, between Broadway and Bluff streets, in Kansas City. A preliminary writ was issued upon the filing of the petition, and in due time respondent filed his return. Relators filed a demurrer to the return, and upon the issues of law thus raised the case was argued and submitted for decision.

The case of State ex rel. Graham et al. v. Seehorn, respondent, decided at the present term of this court and reported at page 541 of this report, is a companion case and almost identical in its facts with the facts pleaded and admitted in this case. A full statement of the facts will be found in the Graham case, and it is not deemed necessary to repeat them at length herein.

Briefly, the important facts necessary to an understanding of this case are the following:

[246 Mo. 573] A condemnation proceeding was instituted by ordinance 3209, passed by the common council of Kansas City, in which the property of the relators was proposed to be taken for the widening of a public street, and a benefit district created for the purpose of providing the necessary compensation to be paid for the property so taken, by making the several tracts and parcels of property therein subject to tax assessments for special benefits received by reason of the proposed improvement. The proceedings regularly progressed until, under the provisions of the charter, an order was required to be made by the municipal court, giving notice of the pendency of the proceedings, and of the impaneling of a jury, at the time and place named, to fix the compensation for the property to be taken and to assess benefits against the property within the benefit district. The order was duly made and published in the proper newspaper and a copy thereof served upon each of the owners of the property to be taken. Personal service of the order was not required upon the owners of the property within the benefit district.

In compliance with the order and the provisions of the charter, the jury returned their verdict, in which compensation for the property condemned was awarded in the total sum of over $ 168,000. The city was assessed with its proportional part of the benefits received, and each tract of property in the benefit district was also assessed its proportional part, according to the benefits received. The verdict was confirmed by the council and judgment thereon rendered by the municipal court. No appeal having been taken within the time allowed, a copy of the verdict was delivered to the city treasurer, and more than half of the benefits assessed were paid before any question was raised as to the validity of the proceedings. It was then discovered that the order of the municipal court for the impaneling of the jury was not published [246 Mo. 574] as required by the charter and that by reason of such defect, the collection of the unpaid assessments could not be enforced. An injunction suit, brought by the property owners who refused to pay their assessments, was tried with the result that the municipal officers were enjoined from enforcing the collection of such assessments. Thereupon an ordinance was introduced in the common council for the purpose of repealing the original ordinance under which the proceedings had thus far been conducted, with a view of beginning new proceedings for the proposed improvement. Relators herein, owners of the property proposed to be taken, brought an injunction suit to enjoin the passage of said ordinance, upon the ground that a final judgment had been rendered, fixing the damages for the property to be taken, which judgment was unappealed from and under which rights had become vested. This suit was tried and the injunction was granted as prayed for.

Sec. 23 of Art. 6 of the charter of said city provides that the city may carry on and maintain supplemental proceedings to properly assess any property in the benefit district "against which an assessment was in the first proceeding erroneously made or omitted to be made," and that, "such supplemental proceedings shall be instituted and conducted as to the particular piece or pieces of private property sought to be included or assessed, in like manner and with like effect as in the original proceedings, and shall be known and described as supplemental...

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