Board of Regents for Northeast Mo. State Teachers College v. Palmer

Decision Date08 September 1947
Docket Number40175
Citation204 S.W.2d 291,356 Mo. 946
PartiesThe Board of Regents For the Northeast Missouri State Teachers College v. Cora I. Palmer, George E. Grim, Clarence F. Grim, Sarah M. Grim Wimp, Jesse J. Wimp, Dorothea May Grim Morey, Rollo J. Morey and Hubert L. Collett, Appellants
CourtMissouri Supreme Court

Appeal from Schuyler Circuit Court; Hon. Walter A. Higbee Judge.

Affirmed.

Robert N. Jones, W. C. Frank, George J. England and Philip J. Fowler for appellant.

(1) Defendants were not regularly summoned in court. The service which was had and the summons which was issued to each of them was for a much shorter time than required by law. Sec 58, General Code for Civil Proceedure; Laws 1943, p. 375. (2) The court erred in not allowing defendant Cora I. Palmer a change of venue, when proper application was filed, at the time when she was first in court and was entitled to a change of venue. Art. XI, Chap. 6, R.S. 1939. (3) The judgment under the evidence is against the law, and is against the law under the evidence. Sec. 27, Art. I, Mo. Constitution of 1945. (4) The findings were founded upon H.B. No. 932, of the 63rd General Assembly, which was signed by the Governor July 3 1946 and no evidence was offered to show that the requirements of the law as found by the court, had been met. (5) The court at the time of hearing it had no legal right over the subject matter of the action and did not have jurisdiction over the person of all the defendants. Sec. 27, Art. I, Mo. Constitution of 1945; Sec. 58, General Code for Civil Proceedure, Laws 1943, p. 378. (6) There was no showing of any necessity for the taking of the land or that it was being taken for public use. (7) There is no valid authorization for the bringing of this action. If the Board of Regents directed bringing of same, it was on May 31, 1946 and at a time when they had no legal authority of bringing such an action. (8) There is no law which authorized the Board of Regents to bring this sort of action. H.B. No. 932, p. 4, Lines 16 to 20; Sec. 27, Art. I, Mo. Constitution of 1945. (9) If same was brought under the provisions of H.B. No. 932 of the acts of the Legislature, no real emergency was shown to exist and said H.B. No. 932 was not yet in full force and effect. Mo. Constitution of 1945, Art. III, Sec. 29. (10) Under the Bill of Rights of the Constitution the right of eminent domain is only given to the State, County or City and no other authority is vested with that right. Art. I, Sec. 27, Mo. Constitution of 1945. (11) Defendants were not regularly in court, and plaintiffs do not have the right of eminent domain and if this action was brought under the provisions of House Bill No. 932, said House Bill is unconstitutional. Sec. 58, General Code for Civil Procedure; Laws 1943, p. 373; Sec. 27, Art I, Mo Constitution of 1945.

S. H. Ellison and L. F. Cottey for respondent.

(1) The first assignment is "too general to serve the purpose of a statement or specification of a point relied upon" within the meaning of Rule 1.08 of this court, and preserves nothing for review. Hartkopf v. Elliott, 99 S.W.2d 25; Aulgur v. Strodtman, 329 Mo. 738, 46 S.W.2d 172. (2) The motion to dismiss did not "state with particularity the grounds therefor" as required by Sec. 60 of the New Code for Civil Procedure. It contained nothing more than bold assertions of conclusions of law. Such conclusions, while they may suffice as a motive for filing the motion, are wholly inadequate as a statement of grounds therefor, and the motion was properly overruled for that reason. (3) Sec. 58 of the New Code for Civil Procedure. This action was brought under authority of House Bill No. 932 enacted by the 63rd General Assembly. Sec. 2 of that Bill directs that the proceedings commenced thereunder shall conform to the provisions of Chapter 8, Article 2, R.S. Mo. 1939. Sec. 1505 of said Article sets forth the manner of obtaining service on the defendants. Appellant Wimp and all of the other resident defendants in this case were duly and personally served with process in the time and manner prescribed by said Sec. 1505. (4) If any error had been committed in the particular complained of, appellant Wimp has waived it. She entered her general appearance by applying for a change of venue, by applying for leave to file answer, by entering into the trial of the cause on its merits, by filing a motion for new trial specifying many other alleged errors, and by participating in this appeal on grounds other than the one in question. Clark v. Brotherhood, 99 Mo.App. 687; Merchants' Savings & Loan Assn. v. Ancona Realty Co., 78 S.W.2d 470. (5) A change of venue having already been awarded at the application of Wimp, none could lawfully be awarded at the application of Palmer. Kerby v. Davis, 91 S.W.2d 215, l.c., 222, syllabus 10. (6) Sec. 2 of House Bill No. 932 expressly gives to educational institutions, acting through their governing bodies, the right to condemn land for the very purposes for which respondent condemned the land in this case. (7) The court may issue process after it has acquired jurisdiction on change of venue. Fears v. Riley, 148 Mo. 49. (8) The court to which a change of venue is awarded has the same powers as the court in which the cause originated. Sec. 1066, R.S. 1939. (9) The necessity, expediency and propriety of exercising the right of eminent domain, either by the state or by the corporate bodies to which the right has been delegated, are questions essentially political in their nature and not judicial. City of Kirkwood v. Venable, 173 S.W.2d 8, l.c. 11, syllabus 4, and cases there cited. (10) The determination by respondent that the taking of the land was necessary, and that its intended use would be a public one, was conclusive on the court. American Tel. & Tel. Co. v. St. Louis, etc., Ry. Co., 202 Mo. 656; Railroad v. Postal Tel. Cable Co., 30 Colo. l.c. 142. (11) In this case there was no claim, no allegation, and no showing whatever of bad faith or a malicious motive on respondent's part. Absent such a showing the court will not disturb the decision reached by respondent. City of Cape Girardeau v. Houck, 129 Mo. 607, l.c. 618. (12) We the court should take judicial knowledge of the existence of the student housing emergency in 1946, and of the measures projected by the Federal Government to alleviate that emergency. The matter was one of public concern and general public knowledge. State ex rel. Crutcher v. Koeln, 61 S.W.2d 750; City of St. Louis v. Pope, 126 S.W.2d 1201. (13) No resolution was required to give respondent authority to institute this action. Full authority is granted by House Bill 932. At the date of the institution of this action House Bill 932 was in full force and effect. (14) Sec. 45 of the New Code for Civil Procedure provides: "When a person desires to raise an issue as to . . . the authority of a party to sue . . . he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge." Appellants' pleadings in this case present no such issue, and the point is not before this court for review. (15) Appellants say that the emergency, as so expressed in the Bill, was a pure conclusion on the part of the Legislature. Aside from the fact that it was a conclusion which the Legislature is authorized to reach, it should again be emphasized that the emergency was real, acute, and nationally publicized and recognized. The court will undoubtedly take judicial notice of it. State ex rel. Crutcher v. Koeln, supra; City of St. Louis v. Pope, supra.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION
BARRETT

The Sixty-Third General Assembly gave certain "State Educational Institutions" the power, through their governing bodies, to condemn property for a "project" provided in the act. Laws Mo. 1945, p. 1715. Pursuant to the act, the Board of Regents for the Northeast Missouri State Teachers College at Kirksville instituted this proceeding in condemnation, in Adair County, to acquire a tract of land to be used for dormitory buildings, one of the projects specified in the law. The purpose of the act is to permit specified educational institutions to take advantage of a Federal Act which seeks to provide housing for the families of servicemen and veterans attending educational institutions. 42 U.S.C.A., Secs. 1571-1573. The fifteen defendants are the owners of the land under the will of Edward A. Grim. Upon the application of one defendant the venue was changed to Schuyler County. The Circuit Court of Schuyler County condemned the land, commissioners assessed the owners damages at $ 5,500.00 and eight of the defendant-owners appeal.

At the outset it is urged that the trial court erred in not sustaining a motion to dismiss the proceeding for the reason that the defendants had not been regularly summoned, the service being for a shorter time than the Civil Code provides. Mo. R.S.A., Sec. 847.58. It is further urged that the Circuit Court of Schuyler County did not have jurisdiction of either the subject matter of the proceeding or of the person of all the defendants because the land was in Adair County and part of the defendants were summoned for the first time in Schuyler County. Then, it is urged that the court erred in not granting the appellant Cora I. Palmer, a change of venue from Schuyler County, since she applied for the change of venue the first time she was lawfully summoned. But Sarah Grim Wimp was the only defendant who filed a motion to dismiss for the reason that service of process in Adair County was not timely. Furthermore, the educational institutions are authorized to "follow the procedure . . . provided by law for the appropriation of land or other property taken for telegraph,...

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4 cases
  • State ex rel. State Highway Com'n v. Curtis
    • United States
    • Missouri Supreme Court
    • 13 Junio 1949
    ... ... 216, 96 N.E. 819; ... Board of Permanent Road Commissioners v. Johnson, ... I, Sec. 27; Board ... of Regents for Northeast Missouri State Teachers College v ... Palmer, 356 Mo. 946, 204 S.W.2d 291; State ex rel. State ... ...
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    • Missouri Supreme Court
    • 21 Noviembre 1985
    ...originally and properly filed there. 1 Ex parte Haley, 99 Mo. 150, 12 S.W. 667 (1889); Board of Regents for Northeast Missouri State Teachers College v. Palmer, 356 Mo. 946, 204 S.W.2d 291 (1947). All parties agree that St. Charles County was the proper venue in which to bring the original ......
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    • Missouri Supreme Court
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    ...the power to condemn property for airports either within or without the city limits. In Board of Regents for Northeast Missouri State Teachers College v. Palmer, 356 Mo. 946, 204 S.W.2d 291, 293 (1947), this Court recognized that the legislative delegation of the power to condemn did not di......

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