Leonard v. Sparks

• Citation: 22 S.W. 899,117 Mo. 103
• Parties: Leonard, Plaintiff in Error, v. Sparks
• Decision Date: 19 June 1893
• Court: United States State Supreme Court of Missouri

22 S.W. 899

117 Mo. 103

Leonard, Plaintiff in Error, v. Sparks

Supreme Court of Missouri, First Division

June 19, 1893

Certified from Kansas City Court of Appeals.

Reversed and remanded.

Karnes Holmes & Krauthoff with McDougal & Sebree for plaintiff in error.

(1) The requirement of the city charter in question is that "service of the notice shall be made at least six days before the jury shall be impaneled." (Art. 7, Sec. 2.) Whether the service is had in time does not go to the jurisdiction. It is a mere matter of procedure, as to which error or irregularity may creep into the case, but the presence of such a circumstance would render the proceedings void nor subject to collateral attack. A defective service is not the same as no notice whatever. Harrington v Wofford, 46 Miss. 31; Mooney v. Maas, 22 Iowa 380; Cole v. Butler, 43 Me. 401, 403; Kipp v. Fullerton, 4 Minn. 473. (2) "A distinction is to be made between a case where there is no service whatever, and one which is simply defective or irregular." The fact of the latter does not deprive the court of jurisdiction. Isaacs v. Price, 2 Dillon C. C., 347; Pursley v. Hays, 22 Iowa 11; Meyers v. Davis, 47 Iowa 325; Campbell v. Hays, 41 Miss. 561; Christian v. O'Neal, 46 Miss. 667. "The irregularity arises not from the want of service, but from the mode of making it." Meyers v. Overton, 2 Abb. Pr. 344; Hunter v. Lester, 18 How., Pr. 347. (2) The recitals to which the principal brief refers as conclusive of the matter of appearance are contained in the circuit court record. (Abstract p. 8.) The finding of proper service made by the mayor is not meant as the basis of the point. The recitals so referred to cannot be contradicted; nor was even the slighest effort made to deny their truth. The rules as to their conclusive effect self-evidently apply to cases where the service was made for too short a time. Owen v. Shaw, 20 Texas, 81; Railroad Co. v. Keep, 22 Ill. 9; Lees v. Wetmore, 58 Iowa 170. (3) The admitted fact is that the mayor "duly impaneled a jury," which necessarily implies the jury prescribed by the charter. State v. Keokuk, 9 Iowa, 438. It is clear however that even if the jurors are not expressly recited to have actually possessed the charter qualifications, the fact did not oust all jurisdiction over the proceedings and render them a mere nullity. The point is not important here, for the further provision is that the cause "shall be tried de novo in the circuit court" (sec. 6), and on the trial thus had, a proper jury was admittedly impaneled and so the record explicitly recites. Sedalia v. Railroad, 17 Mo.App. 105; Long v. Talley, 91 Mo. 305. In such a case, any failure of the record in the mayor's court to recite the competency of the jurors would not oust the jurisdiction of the appellate court. Sutherlin v. Holmes, 78 Mo. 399; Mills Eminent Domain, sec. 251.

D. D. Duggins for defendant in error.

(1) Edward H. Bouton was entitled to six days' notice. He only had five. The record shows this; the petition states it, and the same is taken as true. This notice is entirely insufficient. Laws 1875, sec. 2, page 245, line 19. The charter of Kansas City, under which these proceedings were had, is contained in session acts of Missouri 1875, page 196, et seq. (2) In proceedings to open streets, a person whose property is assessed with benefits is to be served with notice in the same manner that a person whose property is condemned is required to be served. State v. St. Louis, 67 Mo. 113; Ells v. Railroad, 51 Mo. 200. (3) A person not served with process or notice of a proceeding to condemn his land is not bound thereby. State v. St. Louis, 1 Mo.App. 503; Moses v. Dock Co., 84 Mo. 245. (4) The want of notice and the failure to impanel the proper jury are both jurisdictional questions, and can be raised at any time, by any person to the proceedings. Railroad v. Campbell, 62 Mo. 585; Hansberger v. Railroad, 43 Mo. 196; France v. Evans, 90 Mo. 74. (5) In proceedings of this nature, in derogation of common law and right, the utmost strictness is required in order to give them validity, and unless it appear upon the face of the proceedings that every essential prerequisite of the statute conferring the authority has been fully complied with, every step will be coram non judice. Ells v. Railroad, 51 Mo. 200; Cunningham v. Railroad, 61 Mo. 33; Anderson v. Pemberton, 89 Mo. 61; Bleze v. Costelio, 8 Mo.App. 290. (6) Notice of proceedings to take property for public use, when required to be given, is the foundation of the right to proceed; and if such notice be not given or if not given in the way prescribed, the proceedings are void. Baltimore v. Bouldin, 23 Md. 328; Darlington v. Com., 41 Pa. St. 68; Horbeck v. Toledo, 11 Ohio St. 219; Nichols v. Bridgeport, 23 Conn. 189; Goudy v. Hall, 30 Ill. 109; Wort v. Finley, 8 Blackf. (Ind.) 335; Downs v. Fuller, 2 Metc. (Mass.) 135; Outhwite v. Porter, 13 Mich. 533. (7) The judgment rendered without notice is void. Anderson v. Brown, 9 Mo. 640; Roach v. Burnes, 33 Mo. 319; Railroad v. Reynolds, 89 Mo. 146. And advantage may be taken of such judgment in a collateral proceeding. Abbott v. Shepperd, 44 Mo. 273; Higgins v. Piltzer, 49 Mo. 152; Fithian v. Monks, 43 Mo. 502; Ferguson v. Crawford, 70 N. Y. Ct. App. 253; France v. Evans, 90 Mo. 74; Daughtery v. Brown, 91 Mo. 26, 30.

Barclay, J. Black, C. J., Brace and Macfarlane, JJ., concur.

OPINION

Barclay, J.

-- October 5, 1887, defendant sold to plaintiff a piece of land in Kansas City, Missouri, by deed of general warranty with covenants implied by the words "grant, bargain and sell." Revised Statutes 1879, sec. 675; Revised Statutes 1889, sec. 2402.

The present action is based on those covenants, to recover of defendant the amount of certain special taxes paid by plaintiff in 1888, to relieve the land of the lien imposed thereby.

These special taxes were for "benefits" assessed against the property in a proceeding to open a street in Kansas City.

The only issue in the case is that of the validity of the special taxes. Defendant claims that the proceedings in which they were levied are wholly void as to Mr. Bouton, who then was the owner of the land, and to whom defendant was successor in title. That claim was submitted to the circuit court upon a stipulation in the nature of an agreed case, the essential features of which will appear. The court found for defendant, and the plaintiff took the ruling to the Kansas City court of appeals for review. The judges of that court did not agree in their conclusions upon it, and certified the case to the supreme court in accordance with the constitutional directions on that subject. Constitutional amendment 1884, sec. 6.

The condemnation proceedings in question were founded upon the Kansas City charter of 1875 (Sess. Laws 1875, p. 196, and following). Two main objections are urged against them, it being conceded that in other respects they were regular throughout.

1. It is said that the assessment of benefits is void because the owner of this property was served with process five days before the day named for his appearance, while the charter required "at least six days" notice. Session Acts, 1875, sec. 2, p. 245.

The proceedings were taken under an ordinance of the city of Kansas, January 18, 1887, to open Elma street, and followed the usual course; first, before the mayor, and, later, in the circuit court, upon an appeal thereto by one of the other parties. Mr. Bouton did not at any time appear in the case in response to his notice. Finally a judgment was rendered, confirming the verdict of a jury which had assessed damages in favor of the parties whose land was acquired for public use, and various items for "benefits" against property in the vicinity, including that of Mr. Bouton.

From the most casual glance at the record, it appears that the proceeding was one of a class which the mayor and circuit court had power to hear and determine. It was a case involving the use of that judicial power committed by law to those functionaries. They had jurisdiction of its subject-matter, according to the principles declared in many decisions. Walker v. Likens (1857), 24 Mo. 298; Patten v. Weightman (1873), 51 Mo. 432; Hagerman v. Sutton (1887), 91 Mo. 519, 4 S.W. 73.

But was complete jurisdiction obtained over Mr. Bouton? The latter personally received an official command to appear in the condemnation case before the mayor at a time named. The notice itself was valid and regular, in the prescribed statutory form, and duly served on Mr. Bouton within the territorial jurisdiction of the mayor. Mr. Bouton was entitled by law to six days' notice; but the mayor would have had jurisdiction over him if he had appeared without any notice, as he might have done. So, also might he have objected to the shortness of the service and have asserted his right to the full six days' notice by moving at the proper time to make that objection. But he did not see fit to do so. He was as competent to waive the full length of time of service as he was to appear without any notice whatever. The personal service of the process of the court brought the judicial power of the latter to bear upon him. He had his "day" to object to the process, if he did not deem it sufficient because not timely, or for any other reason; but he did not avail himself of that opportunity. He certainly could not, by ignoring the command of the writ, deprive the court of authority to determine as to the sufficiency of its service. It was for the court, not the party, to decide whether or not it was sufficient. It held it to be good, and rendered judgment accordingly. In contemplation of law, Mr. Bouton was before the court, for he had been personally summoned to appear there, and might...