Musick v. The Kansas City, Springfield & Memphis Railway Company
| Citation | 21 S.W. 491,114 Mo. 309 |
| Parties | Musick, Administrator, v. The Kansas City, Springfield & Memphis Railway Company, Appellant |
| Decision Date | 27 February 1893 |
| Court | United States State Supreme Court of Missouri |
Appeal from Greene Circuit Court.
Reversed and remanded.
Wallace Pratt and C. B. McAfee for appellant.
White & McCammon and J. P. Nixon for respondent.
(1) The justice was without jurisdiction. Revised Statutes, 1889 sec. 6124. (2) The justice had no jurisdiction over the person of Nell; no summons was issued and he did not appear. Revised Statutes, 1879, sec. 2849; Freeman on Judgments, sec 118; Bersch v. Schneider, 27 Mo. 101; Jeffries v. Wright, 51 Mo. 220; McCloon v. Beattie, 46 Mo. 392; Cunningham v. Railroad, 61 Mo. 33. (3) No person is required to answer in a suit on whom process has not been served; the judgment in such case is void. Mills v. Duryee, 2 American Leading Cases, 815; Crepps v Durden, 1 Smith's Leading Cases, 833; Bersch v. Schneider, 27 Mo. 101; State v. Metzger, 26 Mo. 65; Cunningham v. Railroad, 61 Mo. 33. (4) The condemnation proceedings were void, because they were against Joseph Fisher and Henry Nell who were not joint owners of one tract of land. They were each sole owners of a distinct tract of land adjoining each other, and the commissioners in the proceeding against these several owners awarded one sum.
This action was brought by plaintiff, as administrator of Henry Nell, to recover damages for trespass of the defendant upon certain land in Wright county.
The defendant denied the trespass, asserting a right to the possession of the property mentioned.
The case began in Wright county; but the venue was afterwards changed to Greene, where the trial took place. Plaintiff had judgment, following a ruling of the court excluding an offer of proof by defendant the nature of which will more fully appear later.
Defendant appealed in due course to the Kansas City court of appeals, which sent the case here.
1. Where the record in an action for injury to real property shows that the defense rests upon an adverse claim of right to the possession of the land in question, the cause involves "title to real estate" within the meaning of the language defining the jurisdiction of the supreme court. (Constitution, 1875, art. 6, sec. 12; Revised Statutes, 1889, sec. 6570.) The transfer to this court was therefore entirely proper.
2. Such a right of action for damages to realty in this state survives to the personal representative of the injured owner. (Revised Statutes, 1889, sec. 96.) Plaintiff may hence sustain the action as administrator, upon a sufficient showing of right and damage.
3. The gist of the case is found in defendant's contention that it acquired a right to possess the land in dispute by virtue of proceedings had in the exercise of the power of eminent domain, under the law now known as section 2566, Revised Statutes, 1889.
Plaintiff replies that those proceedings are void and of no force for various reasons.
It appears that defendant by deed from Nell in 1881 obtained a right of way, one hundred feet wide, through a tract of land (forty acres in size) belonging to him, and constructed its railroad upon that strip. Afterwards, in 1882, defendant took steps to acquire an adjacent tract, about twelve acres in extent, for the purpose of a reservoir. In doing so, it instituted proceedings before Thomas H. Patterson, a justice of the peace in Wright county. A transcript of those proceedings was the matter excluded by the court on the trial of the case at bar. The correctness of that ruling is the question before us.
We shall take up the several objections urged to the admission of that document.
Plaintiff claims that the justice had no jurisdiction of the subject-matter, and for that reason his supposed record is a nullity.
in which it alleged that it was a corporation under the laws of Missouri, constructing its road across Wright county, Missouri; that it required and sought to acquire the following described land belonging to the defendants for the purpose of constructing and maintaining thereon a pond or reservoir for the use of its railroad in operating the same, viz.: (describing the tract particularly, by metes and bounds); that plaintiff and the owners of said land could not agree as to the amount of damage the defendant owners of said land should receive; that the petitioner had not entered upon the said land; and praying the justice to appoint three disinterested freeholders of Wright county as commissioners to assess and ascertain the damages said defendants were entitled to receive.
The transcript also showed that Fisher and Nell had each been personally served with a written notice of the above application more than ten days before its presentation; and that proof thereof was furnished by the affidavit of the person who made the service. These notices stated fully the nature and purpose of the application to be made to Justice Patterson (as above), the time when it would be presented to him; and contained the same particular description of the land which it gave.
Thereupon, it appeared, the justice made an order, June 7, 1882, reciting the objects and substance of the foregoing petition (including a description of the land), the failure to agree with the owners as to the amount of damages, etc.; that notice had been given to the owners of said land more than ten days before the application; and appointing three disinterested freeholders of the county, John B. Ago, S.W. McNaul and John H. Williams, commissioners to view the land and to ascertain and report the amount of damages sustained by the owners by reason of the proposed construction and maintenance of a reservoir on the land described for the use of the railroad; and directing the commissioners to report their finding and assessment of damages in writing.
It appears further that the viewers were sworn to "impartially and faithfully discharge the duties devolving on them as commissioners;" and that they filed later with the justice a written report signed by them all, in which, after reciting the preliminaries above indicated, they declared that they had viewed the described ground and ascertained the damages to the landowners in consequence of the "appropriation of said land by plaintiff for use as aforesaid" and assessed said damages at $ 100.
On the same day the railway company deposited with the justice the amount of the damages in the form of a sight draft, which he received as cash and receipted for as in full settlement of the amount of the award of the commissioners.
Afterwards the railroad company took possession of the property and has ever since used it as a reservoir or pond in connection with its general operations.
It is contended now that Justice Patterson had no jurisdiction of proceedings involving title to land, and that the railroad company could acquire no right in this real property in the manner described.
It is true that by one section of our general laws it is declared that "no justice of the peace shall have jurisdiction to hear or try * * * any action where the title to any lands or tenements shall come in question and be in issue." Revised Statutes, 1889, sec. 6124; Revised Statutes, 1879, sec. 2837.
But, on the other hand, section 2566 (Revised Statutes, 1889; Revised Statutes, 1879, sec. 788) plainly contemplates that, by...
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