Caruthersville School Dist. No. 18 of Pemiscot County v. Latshaw

• Decision Date: 11 September 1950
• Docket Number: No. 41743,No. 1,41743,1
• Parties: CARUTHERSVILLE SCHOOL DIST. NO. 18 OF PEMISCOT COUNTY et al. v. LATSHAW et al
• Court: Missouri Supreme Court

Page 6

233 S.W.2d 6

360 Mo. 1211

CARUTHERSVILLE SCHOOL DIST. NO. 18 OF PEMISCOT COUNTY et al. v. LATSHAW et al.

No. 41743.

Supreme Court of Missouri, Division No. 1.

Sept. 11, 1950 Motion to Transfer to Court en Banc Denied Oct. 9, 1950.

Von Mayes, Caruthersville, Haw & Haw, Charleston, for appellants.

Ward & Reeves, Caruthersville, for respondents.

ASCHEMEYER, Commissioner.

This is an appeal by J. B. Latshaw and Nell Latshaw, defendants in a condemnation proceeding instituted by the Caruthersville School District No. 18 and the members of the Board of Directors of said school district, from an order overruling their motion to vacate and set aside the judgment entered in such proceeding. An appeal lies from an order overruling a motion to vacate a judgment. Harrison v. Slaton, Mo.Sup., 49 S.W.2d 31, 34; Ford v. Ford, Mo.Sup., 24 S.W.2d 990, 992. The motion to vacate challenged the validity of the judgment entered in the condemnation proceeding. Whatever title respondents have to the property sought to be condemned is derived from the condemnation proceeding. Thus, the motion to vacate seeks to vitiate respondents' muniment of title. Title to real estate is involved and this Court has appellate jurisdiction. Nettleton Bank v. McGauhey's Estate, 318 Mo. 948, 2 S.W.2d 771; art. V, Sec. 3, Constitution of 1945, Mo.R.S.A.

Respondents filed suit against appellants (owners in fee simple of the tract of land described in the petition) and others, to condemn and acquire real estate as a site for additional school buildings and playground. The suit was brought under the provisions of Sec. 10348, R.S.1939, Mo.R.S.A. Sec. 10348, which empowers school districts, through their Boards of Directors, to condemn real estate in the manner provided in art. 2, Chap. 8, R.S.1939, Secs. 1504-1508, R.S.1939, Mo.R.S.A. Secs. 1504-1508. Both Sec. 10348 and Sec. 1504, R.S.1939, Mo.R.S.A. Secs. 10348, 1504, require, as a condition of the right to condemn, that the condemnor be unable to agree with the owner upon the price or proper compensation to be paid for the land to be appropriated. It has been held that inability of the parties to agree upon compensation to be paid is jurisdictional and must be pleaded and proved. School Dist. of Clayton v. Kelsey, 355 Mo. 478, 196 S.W.2d 860, 861; State ex rel. State Highway Commission v. Williams, Mo.App., 69 S.W.2d 970, 971. Accordingly, appellants' motion to vacate the judgment in the instant case raises the issue that the judgment is void and the Circuit Court was without jurisdiction to render it because: 'It does not appear affirmatively upon the face of the record * * * that plaintiffs * * * made a bona fide attempt to agree with defendants upon the amount of compensation to be paid them for the property.'

Appellants' motion to vacate was filed after the expiration of the term of court at which the so called 'Final Judgment in Condemnation' was entered. It seeks to impeach the judgment for irregularity or invalidity which is said to be patent upon the face of the record in the proceeding. Authority for such a motion, if made within three years after the expiration of the term at which the judgment was rendered, is contained in Sec. 1267, R.S.1939, Mo.R.S.A. Sec. 1267. Such a motion under the statute 'must be one based upon an irregularity which is patent on the record, and not one depending upon proof dehors the record.' State ex rel. Potter v. Riley, 219 Mo. 667, 681, 118 S.W. 647, 651; Harrison v. Slaton, supra; Crabtree v. Aetna Life Insurance Co., 341 Mo. 1173, 111 S.W.2d 103, 107. It is, in legal effect, a collateral attack on the judgment and such an attack will not lie unless a judgment is void upon the face of the record. Ray v. Ray, 330 Mo. 530, 50 S.W.2d 142, 143; Howey v. Howey, Mo.Sup., 240 S.W. 450; Inter-River Drainage Dist. v. Henson, Mo.App., 99 S.W.2d 865; Ecton v. Tomlinson, 278 Mo. 282, 212 S.W. 865. The validity of a judgment is not to be determined from the face of the judgment alone, but from an examination of the record or 'record proper.' Such a record includes, among other things, the petition and subsequent pleadings. It includes, generally, 'those matters which, by positive law, or by rule of practice, are made 'of record,' and as such are self-preserving, and those matters occurring during the progress of the trial of a cause which otherwise would not be of record unless made so, and preserved, by a bill of exceptions filed by order of the court.' State ex rel. May Department Stores Co. v. Haid, 327 Mo. 567, 38 S.W.2d 44, 45, 50; see also In re Moore's Guardianship, Mo.App., 148 S.W.2d 116, 118; In re Arnold's Estate, Mo.App., 176 S.W.2d 837, 838; Martone v. Bryan, 233 Mo.App. 1249, 130 S.W.2d 962, 965.

The record facts shown in the transcript on this appeal (omitting certain facts not considered essential to a decision) are as follows: The original petition for condemnation was filed in the Circuit Court of Pemiscot County on July 22, 1948. Appellants filed an answer thereto on July 26, 1948. On July 27, 1948, respondents filed their first amended petition which alleged that they had been unable to agree with appellants upon the damages occasioned by the acquisition of the property described in the petition and which recited the adoption of a resolution by the Board of Directors of the School District which provided, in part:

'Whereas, this Board of Directors has heretofore made an offer for the purchase price of the above-described real estate to the present owners of said real estate and this Board of Directors have been unable to agree upon a price:

'Therefore, be it resolved that the attorney heretofore selected by this Board of Directors be authorized to proceed by whatever legal proceedings he may deem necessary to condemn and appropriate the above described real estate for the uses aforesaid.' On July 29, 1948, appellants filed an amended answer to this petition. This answer admitted the allegations of the petition concerning the inability of the parties to agree upon the price of the land to be acquired and also admitted that the resolution set out in the amended petition was unanimously adopted by the Board of Directors of the School District. On August 4, 1948, the Court entered an order finding 'that due notice of the pendency of this suit has been given to all parties in interest ten days or more prior to this date' and the Court thereupon appointed three commissioners to assess the damages appellants would sustain by reason of the appropriation of the land described therein. The commissioners so appointed took oath before the Clerk of the Court on August 9, 1948. On September 7, 1948, appellants filed a second amended answer and on October 19, 1948, they filed a third amended answer. Both of these answers denied the allegations of respondents' amended petition alleging the inability of the parties to agree upon the price for the land to be appropriated and the adoption of the resolution of the Board of Directors of the School District previously referred to. Subsequently, the third amended answer was withdrawn by appellants. On successive changes of venue, the case went to the Circuit Court of Mississippi County. The report of the commissioners appointed on August 4, 1948, was filed on January 7, 1949. The report assessed appellants' damages at $28,800. This amount was paid into Court for the use and benefit of the defendants in the proceeding. No exceptions were filed to the commissioners' report or the assessment of damages. On January 18, 1949, appellants filed their motion to dismiss the proceedings and to strike the report of the commissioners contending (1) that the venue of the proceeding could not be changed until after the commissioners filed their report in the Circuit Court of Pemiscot County and (2) that the School District was attempting to condemn property in excess of that needed for the public improvement contemplated. Subsequently, the motion to dismiss was dismissed without prejudice, and on February 7, 1949, the Court entered a so called 'Final Judgment in Condemnation' reciting that no objections or exceptions had been filed to the commissioners' report (the time therefor having expired); reciting the payment into Court of the damages assessed; and confirming and approving the commissioners' report. It recited further: 'It is further ordered, adjudged and decreed that the title and right of possession of the plaintiffs be confirmed in them for public school purposes, as set forth in plaintiffs' petition, in and to the real estate described in and set out in said petition.' Then followed a specific description of the property appropriated.

The contentions of appellants may be summarized as follows: Where the Court exercises jurisdiction in a special statutory proceeding (such as a condemnation suit) no presumptions or intendments favorable to the validity of the proceedings are indulged and the jurisdiction of the Court must affirmatively...