Thompson v. Chicago, S. F. & C. Ry. Co.

• Decision Date: 02 March 1892
• Citation: 110 Mo. 147,19 S.W. 77
• Court: Missouri Supreme Court
• Parties: THOMPSON v. CHICAGO, S. F. & C. RY. CO.<SMALL><SUP>1</SUP></SMALL>

19 S.W. 77

110 Mo. 147

THOMPSON v. CHICAGO, S. F. & C. RY. CO.¹

Supreme Court of Missouri, Division No. 2.

March 2, 1892.

EMINENT DOMAIN — JURISDICTION — JUDGMENT — COLLATERAL ATTACK — NOTICE — MORTGAGOR AND MORTGAGEE.

1. Rev. St. 1879, c. 21, art. 6, provides that in condemnation proceedings two notices shall be given to the land-owners. The first is a notice of the hearing of the petition, and is to be served in the same manner as a summons. The second is a notice of the commissioners' report. Section 3489 provides that a summons shall be served by reading the writ to defendant, and giving him a copy of the petition. In a condemnation suit, both notices were served on the land-owner, but no copy of the petition was given him. Held, that the judgment was not subject to collateral attack, since by service of the notices the court acquired jurisdiction of the land-owner's person.

2. The fact that the petition was heard at a later day than that named in the notice does not oust the court of jurisdiction, where the landowner did not appear in court at the day named in the notice.

3. Condemnation proceeedings cannot be collaterally attacked for misjoinder of parties defendant, or for omission to recite, in the order appointing commissioners, that they are disinterested, since these matters are not jurisdictional.

4. Where a judgment in condemnation proceedings specifically refers to and confirms the report of the commissioners, it is unnecessary for the judgment to give the names of the landowners who are named in the report.

5. Upon condemnation of mortgaged land, it is proper to award the mortgagor the full value of the land, since the damages awarded stand in place of the land, and can be subjected to payment of the mortgage.

Appeal from circuit court, Carroll county; JAMES M. DAVIS, Judge.

Action in ejectment and for damages by J. C. Thompson against the Chicago, Sante Fe & California Railway Company. Defendant obtained judgment. Plaintiff appeals. Affirmed.

J. T. Montgomery, for appellant. Gardiner Lathrop, T. J. Whiteman, and S. W. Moore, for respondent.

THOMAS, J.

In 1887 plaintiff was holder of a note for $1,400, secured by deed of trust on lots 17, 18, and 19, block 6, in the town of Norborne, Carroll county, Mo.; B. F. Sanders being the owner of the equity of redemption in lot 17, and Jannette Duggan and husband in lots 18 and 19. On the 2d day of June, 1887, the defendant's grantor, a railway company, instituted condemnation proceedings in the circuit court of Carroll county to acquire the title to said lot 17 for a right of way and depot grounds, making plaintiff, B. F. Sanders, and H. Lamm parties, the latter being the trustee in said deed of trust. Owners of other lots in said town were also joined as defendants. Plaintiff and Lamm then resided in Pettis county, and the other defendants in Carroll county. The judge of the circuit court in chambers ordered that defendants be notified, and accordingly the clerk of the circuit court of Carroll county issued two writs of summons, directed to the sheriffs of said Carroll and Pettis counties, directing that they summon said parties "to appear before the judge of the circuit court of Carroll county, at the law office of John E. Wait, in the city of Chillicothe, Livingston county, on the 17th day of June, 1887, at the hour of one o'clock, P. M., then and there to answer unto the petition of the Chicago, Sante Fe & California Railway Company of Iowa, and which petition will then and there be heard." The parties were duly served with copies of the summons more than 10 days prior to the day set for the hearing. No one appeared, and the judge appointed commissioners, who afterwards filed their report in said circuit court, assessing the damages at $500. Plaintiff and Lamm were duly notified of the filing of this report, as required by section 896, Rev. St. 1879. The railway company deposited the $500 with the clerk, as required by statute. Sanders then moved the court to order the clerk to pay this money to him, supporting his motion by an affidavit that he and not Thompson was entitled to it. A copy of this motion and affidavit was served on Lamm and Thompson, and, they failing to appear, the court, in due time, made an order for the clerk to pay the money to Sanders, which was done. On June 3, 1887, said railway company instituted proceedings in said court to condemn said lots 18 and 19 for its right of way and depot grounds, making Duggan and wife, who were then residents of Iowa, and plaintiff and said Lamm, parties. A summons, similar in form and substance to the one in the other case, was issued and served on plaintiff and Lamm on the 4th day of June, 1887, the return-day being June 15th. On the 9th day of June, 1887, the court made an order of publication as to Duggan and wife, which was published, notifying them that the petition, the substance of which was recited therein, would be heard on the 1st day of July, 1887; and on that day, no one appearing, the judge appointed commissioners, who afterwards reported in due form, assessing the damages at $950, which amount the railway company paid to the clerk of the court as required by law. Plaintiff and the other parties were duly notified of the filing of this report, and, no exceptions being taken, the report was, by said court, confirmed. The record fails to show who got this $950, or whether any one has received it. The railway company took possession of these three lots, tore down some buildings on them, and has used them ever since for depot and right-of-way purposes. Plaintiff foreclosed the deed of trust in 1888, and bought the lots, taking a deed from the trustee to himself, and brought this suit to recover damages for the destruction of the buildings on the property and for possession. The defendant set up the condemnation proceedings above mentioned as a defense. The court gave judgment for defendant, and the plaintiff appealed. The only question presented by this record for decision is whether the condemnation proceedings were void, and therefore subject to collateral attack in this action. The irregularities in these proceedings, which it is claimed render the attempted condemnation void, will be considered in their order.

1. Condemnation proceedings are in the nature of proceedings in rem, in the same sense that attachments, foreclosure of mortgages, and other liens are proceedings in rem. The statute requires notice to be given the owners of the land to be affected, and it must be given in conformity to the statute. The exercise of the might of eminent domain is in derogation of common law and common right, and the utmost strictness is required to give it validity. "The law abhors all ex parte proceedings without notice. To take a man's property without notice of it is repugnant to every principle of justice, and such a proceeding is utterly void." This doctrine is too well settled to require citation of authorities to support it. Circuit courts, in condemnation proceedings, however, act from their inception judicially, though in conformity to statutory powers. That the court had jurisdiction of the subject-matter of these condemnation proceedings is not questioned. The petitions upon which those proceedings were based set out specifically the interest plaintiff had in the premises sought to be condemned, and every other fact necessary to give the court power to act. But plaintiff contends that in those proceedings the court did not, by proper process, acquire jurisdiction over his person, and for that reason the proceedings are void as to him. Article 6, c. 21, Rev. St. 1879, makes provision for the condemnation of land for right of way and depots for railways. By that article two notices to those whose property is to be condemned are required. In the first place, upon filing the petition, either in term-time or vacation, a summons shall be issued giving the owners "at least ten days' notice of the time when said petition will be heard, which summons shall be served by the sheriff of the county in the same manner as writs of summons are or may be required to be served." Section 896, Rev. St. 1879. Section 3489, Id., provides "a summons shall be executed, except as otherwise provided by law — First, by reading the writ to the defendant, and delivering to him a copy of the petition;" and, if there are more than one defendant, the first one served must receive a copy of the petition, and the others copies of the summons.

Defendant's contention is that the service of the summons in the condemnation proceedings was defective and void because copies of the petitions were not served on any one of the defendants. The precise question now presented has never been directly decided by this court, so far as we have been able to discover. The case of Cory v. Railway Co., 100 Mo. 282, 13 S. W. Rep. 346, is cited in support of the view that the service of a copy of the petition is not necessary. No copy of the petition was served in that case, though that fact does not appear in the published report of it. The court, speaking of the notice and its service, uses this language: "It was in the form of a summons, and was served as required by the statute ten days before the petition was heard." We cannot regard this statement, in the connection in which it was made, as an authoritative construction of the statutes now under discussion. The question here presented was not raised in that case, and it cannot, therefore, be presumed that the court decided, or intended to decide, it. Taking the language of our statute literally, it would seem that a copy of the petition ought to accompany and be served with the summons, but we do not believe that has been the understanding of the bench and bar of the state. The eminent counsel engaged in the Cory Case did not raise nor discuss the point. The practice, so far as our information goes, has not been uniform. The statute of 1855 on this subject...