City of St. Louis v. Cruikshank

• Decision Date: 24 February 1885
• Parties: CITY OF ST. LOUIS, Respondent, v. J. D. CRUIKSHANK ET AL., Appellants.
• Court: Missouri Court of Appeals

16 Mo.App. 495

CITY OF ST. LOUIS, Respondent,

v.J. D. CRUIKSHANK ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Feb. 24, 1885.

APPEAL from the St. Louis Circuit Court, HORNER, J.

Reversed and remanded.

J. M. HOLMES, for the appellants: There must be averment and proof of performance, of a condition precedent appearing on the face of the cause of action.-- Bayse v. Ambrose, 32 Mo., 484; Mier v. Heinrichschoffen, 52 Mo. 333; Stout v. St. Louis Tribune Co., 52 Mo. 342; Breicheisen v. Coffey, 15 Mo. App. 80.

LEVERETT BELL and T. H. CULVER, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This is a proceeding by the city of St. Louis, under the provisions of article VI. of its charter, to condemn certain land for the purpose of an alley. Such proceedings were had that certain benefits were assessed against two lots of Mrs. Josephine B. Noonan. Mrs. Noonan filed a number of exceptions to the report of the commissioners in the circuit court, and these being overruled, and the report confirmed, she filed motions for new trial and in arrest of judgment, which were also overruled, and she then appealed.

The exception principally insisted upon in this court is, that the petition shows on its face no cause of action. By the terms of section 2, article VI., of the charter, the city counsellor is authorized to apply in the circuit court for the appointment of commissioners, etc., “whenever the general assembly shall provide by ordinance for establishing, opening, widening, or altering any street, avenue, alley, etc. It is obvious, in view of this language, that a valid ordinance authorizing the establishment of the particular street or alley is necessary to the jurisdiction of the circuit court to proceed in the summary manner therein pointed out. The ordinance under which this proceeding was instituted, contained in section 3 the following provision:--

This ordinance shall be null and void and have no effect, unless within ten days after the approval of this ordinance, the owner or owners of the lot of ground south of, and adjoining the alley as herein established, shall properly dedicate a strip of ground twenty feet in width extending from the south line of Benoist and Ewing's addition to the north line of the public school's subdivision of part of the United States survey three thousand and three, and the lines of said alley to be straight linear continuations southwardly of the lines of the alley herein established.”

The petition does not allege, nor was any evidence offered tending to prove that this condition precedent, upon which the validity of the ordinance was made by its own terms to depend, had ever been complied with. It is a settled rule of pleading that, where a condition precedent exists, the performance of which is necessary to give a right of action, such performance must be alleged and proved. Bayse v. Ambrose, 32 Mo. 484. That was not done in this case, and, for aught that appears on the face of...