Kansas City v. Woerishoeffer

• Decision Date: 28 March 1913
• Citation: 249 Mo. 1,155 S.W. 779
• Parties: KANSAS CITY v. WOERISHOEFFER et al. SAME v. METROPOLITAN ST. RY. CO. et al. SAME v. CARSON et al.
• Court: Missouri Supreme Court

155 S.W. 779

249 Mo. 1

KANSAS CITY v. WOERISHOEFFER et al.

SAME v. METROPOLITAN ST. RY. CO. et al.

SAME v. CARSON et al.

Supreme Court of Missouri.

March 28, 1913.

1. EMINENT DOMAIN (§ 182) — PROCEEDINGS — PUBLICATION OF NOTICE — SUFFICIENCY.

An order of publication giving notice to parties interested in proceedings by Kansas City to condemn land for viaduct purposes was not fatally defective because there was printed with the order a certificate of the clerk, which erroneously certified that the order was made on March 21, 1911, when it was made on May 17, 1911; the publication of the certificate being surplusage.

2. PROCESS (§ 98) — ORDERS OF PUBLICATION.

If the essentials of orders of publication are present, such orders are not vitiated by surplusage therein.

3. APPEAL AND ERROR (§ 880) — PERSONS WHO MAY COMPLAIN.

An appellant who did not request a jury trial cannot assign error to the refusal of it, though a jury trial was demanded by another defendant who did not appeal; Rev. St. 1909, § 2082, by direct provisions requiring reversible error to be committed against appellant.

4. JURY (§ 25) — RIGHT TO JURY TRIAL — WAIVER.

Defendants, who did not demand a jury trial in proceedings by a city to condemn lands for public improvements, waived any right thereto they might have had, since a party may waive even a constitutional right.

5. JUDGMENT (§ 1) — DEFINITION.

A judgment is a judicial act, being the sentence of the law upon the record.

6. JUDGMENT (§ 298) — AMENDMENT.

Judicial acts are in fieri during the whole term so as to be the subject of amendment.

7. JUDGMENT (§ 297) — AMENDMENT.

At common law the power to amend judgments was inherent in the court as an exercise of judicial power.

8. JUDGMENT (§ 248) — PLEADINGS AND ISSUES.

It is the duty of the court to make its judgment to speak the truth as a determination of all the issues made by the pleadings.

9. APPEAL AND ERROR (§ 440) — AMENDMENT AFTER APPEAL.

The right to amend a judgment so as to make it speak the truth was not affected by an appeal therefrom.

10. MUNICIPAL CORPORATIONS (§ 918) — PUBLIC IMPROVEMENTS — ELECTIONS.

An election for the voting of bonds for making public improvements was not void because the election ordinances did not appropriate the election expenses.

11. FRAUD (§ 50) — PRESUMPTIONS.

It will be presumed that conduct was not fraudulent.

12. APPEAL AND ERROR (§ 542) — RECORD — EVIDENCE.

The ex parte affidavit of a person is not a part of the appellate record.

13. MUNICIPAL CORPORATIONS (§ 890) — ORDINANCES — APPROPRIATING ORDINANCES — INDORSEMENT BY COMPTROLLER.

Kansas City Charter, art. 3, § 2, requiring appropriating ordinances to be referred to the comptroller for his certificate that sufficient unappropriated money stands to the credit of the particular fund to meet the requirements of such ordinance, would not require the comptroller's indorsement of an ordinance for the construction of a viaduct and traffic way where no contract was yet to be let for its construction, and damages for regrading had already been paid by the city, and damages for condemning property had been assessed against the owners, so that the funds from which the viaduct was to be constructed were in fact provided.

14. MUNICIPAL CORPORATIONS (§ 288) — FISCAL MANAGEMENT.

Charter provisions, in effect requiring that there be a showing of sufficient money in the

city treasury to finance public improvements ordered, are mandatory.

15. MUNICIPAL CORPORATIONS (§ 304) — PUBLIC IMPROVEMENTS.

An ordinance providing for the change of grade of streets and of cross streets, for the condemnation of land and easements, for construction of a viaduct, the assessment of damages and benefits and the construction of viaducts, approaches, and retaining walls was not invalid because of any complexity of the scheme for public improvements.

16. EMINENT DOMAIN (§ 55) — STREET IMPROVEMENTS.

Under the Constitution and the Kansas City enabling act, that city has power to provide by charter for as many methods to meet the different phases of condemnation for street improvements as it desires, if such methods do not contravene the Constitution or general policy of the law.

17. EMINENT DOMAIN (§ 58) — CONDEMNATION BY CITY — PROPERTY CONDEMNED.

A city could condemn an overhead easement widening out a little over adjacent property; it not being bound to exercise its full powers of condemnation.

Woodson and Graves, JJ., dissenting.

In Banc. Appeal from Circuit Court, Jackson county; Thomas J. Seehorn, Judge.

Proceedings by Kansas City against Anna Woerishoeffer and another, and by the same against the Metropolitan Street Railway Company and others, and by the same against C. H. Carson and another. From a judgment for plaintiff in each case, defendants appeal and the appeals were consolidated. Affirmed.

Ball & Ryland, Rozzelle, Vineyard & Thacher, Johnson & Lucas, John H. Lucas, William Stocking, and R. E. Ball, all of Kansas City, for appellants. Andrew F. Evans, Hunt C. Moore, John G. Schaich, and Park & Brown, all of Kansas City, for respondent.

LAMM, C. J.

These are appeals by lot owners from the assessment of damages and benefits in a street improvement, known as the Twelfth street traffic way. Three appeals came up and bore our serial docket numbers 16,927, 17,036, and 17,042. In the first Anna Woerishoeffer and another, in the second the Metropolitan Street Railway Company and three others, in the third C. H. Carson and Elizabeth Strope are appellants. The proceeding involved a great many individuals, corporations, and tracts of land in Kansas City, but there was one verdict and one judgment in the Jackson circuit court. So the suit, though of omnibus character, was an entirety. In view of those facts, under the reasoning of State ex rel. v. Gill, 84 Mo. 248, those appeals were consolidated here into one cause on motion. The public interest being involved, the consolidated cause was advanced on motion, heard in banc at the January call, 1913, and submitted on oral argument and a group of briefs. Pending these appeals, two appellants, Elizabeth Strope and C. H. Carson, died testate. Thereat George W. Strope (executor and sole devisee under the will of Elizabeth) and Frank F. Rozzelle (executor of the last will of C. H. Carson) and divers persons, heirs and devisees of Carson, enter their appearance as substituted parties and on leave granted file briefs.

The case, in outline, is this: Topographically the lay of the land on which Kansas City is situate is unique, viz., bottoms and upland (hereinafter called uptown); the line of demarkation between uptown and bottoms being a bold bluff. Speaking generally, in the bottoms are packing, wholesale, and manufacturing interests, together with freight depots, stockyards, and allied businesses, while uptown are the retail and residence districts of a great and rapidly expanding city. Twelfth is an east and west street of some length, and cuts the bluff at right angles. Twelfth at the bluff, left in a state of nature, is too precipitous for surface hauling or travel. Appellant railway company has long had one track, and maybe more, on Twelfth passing over the bluff on a viaduct. But this viaduct was not for ordinary street travel or traffic. It was confined to street cars. Twelfth street is the shortest distance between the heart of the business district in the bottoms and the residence and retail districts uptown. If opened, it would be the town's main artery. Barring street car passage, up to this time the immense surface hauling and travel, to and fro from the bottoms and uptown, is by circuitous routes to the north and south of Twelfth over heavy grades on Sixth and Twenty-Fourth streets. In busy hours the stream of hauling and travel flows over a network of railroad tracks and was often dammed, to the delay and detriment of transportation; time being money in commerce and travel. The growth of the city's population and traffic has been such that its commerce was more and more clogged and handicapped by those conditions and its future development menaced. Moreover, the railway company faced this situation. Its viaduct was old and needed reconstructing. Thereon it has used cable cars up to this time; a form of transportation (in this case) dangerous, antiquated, and inadequate. The mutual welfare of company and city exciting and enlisting mutual interest, the establishing of a grade and building a viaduct on Twelfth suitable to the needs of both, so that the street car line might be modernized and electrified and travel and traffic on Twelfth be opened over the bluff, had become a matter of crying public concern.

There is a street crossing Twelfth in the bottoms, known as Liberty. There is another uptown crossing Twelfth, known as Broadway. The traffic way, as the proposed plan will be called, starts at Liberty as its west terminus and ends at Broadway as its eastern. The distance between the two is more than a half mile. The proposed viaduct structure is the rise of two-fifths of a mile long. To solve the engineering problem of the traffic way, the grade not only of Twelfth, but portions of some cross streets between the bluff and Broadway (viz., Washington, Pennsylvania, Jefferson, and Summit), had to be changed. It was also necessary to widen Twelfth on the surface for a certain distance in the bottoms and to condemn land for that purpose, also to condemn an overhead easement on Twelfth for the viaduct. So, to save a great and unnecessary expense in the bottoms, at a certain point on Twelfth, for a very little way on one side, it was necessary to widen the overhead right of way on Twelfth by condemning an overhead right of way over a little strip of land 15 feet wide on which buildings stand. Approaches thereto and a double-deck viaduct, built of reinforced concrete, were component parts of the improvement, as said. The upper deck of this viaduct is for street cars, then a roadway for...