Williams v. Monroe

• Decision Date: 18 December 1894
• Parties: WILLIAMS v. MONROE et al.
• Court: Missouri Supreme Court

28 S.W. 853

125 Mo. 574

WILLIAMS v. MONROE et al.

Supreme Court of Missouri, Division No. 2.

December 18, 1894.

CONDEMNATION PROCEEDINGS — VALIDITY — ISSUE OF SUMMONS BY CLERK.

1. Under Act March 31, 1887, providing that the petition in certain condemnation proceedings by a city "may be presented to the circuit court when in session, or to any judge thereof in vacation," and that, "upon filing the petition, a summons shall be issued," the clerk has no authority, on the filing of such a petition, to issue a summons or order of publication.

2. When process does not issue from the court, judge, or officer authorized by law to issue it, or require its issuance, it is void.

3. A return of service which neither states that the officer found the party to be served, or failed to find her, or that he served her personally, is void on its face.

4. When a return of service of notice of condemnation proceedings is filed with the commissioners' report, it becomes a part thereof.

5. Where the whole record of condemnation proceedings is before the court in a collateral action, and it includes a return of service, the court cannot presume that there is other evidence of service.

6. The assessment of a property owner with benefits by the commissioners in condemnation proceedings by a city, under Act March 31, 1887, without giving the notice thereof required by such act, is void.

Appeal from circuit court, Jackson county; John W. Henry, Judge.

Action by Mary E. Williams against Margery Monroe and another in ejectment. Judgment for plaintiff, and defendants appeal. Affirmed.

Beardsley, Gregory & Flannelly, for appellants. R. B. Middlebrook and W. A. Harnesberger, for respondent.

GANTT, P. J.

This is an action of ejectment, in the statutory form, for the possession of lot 9 in block 1 of E. A. Phillip's subdivision of lots 11, 12, and 13 of D. O. Smart's subdivision, an addition to Kansas City, Jackson county, Mo. Damages are laid at $80, and rents and profits, $5 per month. The answer is a general denial. A jury was waived. Plaintiff obtained judgment in the circuit court for possession of the lot, and damages in the sum of $40, and the rents were fixed at $5 per month. In due time, defendants filed motions for new trial and in arrest of judgment. The motion for new trial was based on the following grounds: First. The finding of the court upon facts in this case is contrary to the evidence. Second. The finding of the court is contrary to law. Third. The finding of the court under the evidence should have been for these defendants. Fourth. The finding of the court under the law and upon the evidence should have been for these defendants. And the motion in arrest simply asserted that, upon the whole record, judgment should have been given for defendants, and the court erred in rendering judgment for plaintiff. No exceptions were saved to the ruling of the court on the admission of the evidence. No instructions were asked or given. The only ground for reversal, as the record is now made up, is that the finding and judgment of the circuit court are against the evidence.

It is the settled practice of this court not to disturb the findings of the circuit courts in actions at law on the ground that they are contrary to evidence, unless there is a complete failure of testimony tending to support the verdict or finding. Wilson v. Albert, 89 Mo. loc. cit. 544; 1 S. W. 209; McKay v. Underwood, 47 Mo. 186; Bank v. Armstrong, 92 Mo. 280, 4 S. W. 720; Mead v. Spalding, 94 Mo. 43, 6 S. W. 384. We may only look, then, to see if there was any testimony upon which the court could rest a judgment for the plaintiff. It was admitted she was the common source of title, and entitled to recover, unless certain condemnation proceedings instituted by the city in grading a part of Colorado avenue in said city had diverted her title. Defendants relied on a sheriff's deed, based on a judgment for benefits under these proceedings. We have had some difficulty in determining just how far we ought to consider the record of condemnation proceedings. In the bill of exceptions we find this stipulation: "It is understood that all the records and papers in said case No. 1,674, as either party might desire to use, are in evidence." Now, with a perfect knowledge of the record, counsel on both sides have argued the sufficiency of the notice to Mrs. Williams. Her counsel, in his additional abstract and brief, makes the statement that the service was an order of publication. On the other hand, counsel for defendant argues the sufficiency of the service as giving the court jurisdiction, and that, when it was once obtained, it was not open to collateral attack. We find, however, in the bill this fact: that the circuit court was not in session when this petition for the grading proceedings was filed with the clerk, nor was it presented to any judge of that court in vacation; and this is a sufficient basis for the discussion maintained on both sides as to the sufficiency or insufficiency of the service in the inception of these proceedings.

These proceedings were had under an act of the legislature approved March 31, 1887, entitled "Cities, Towns, and Villages; Damages to Private Property for Public Use." Laws Mo. 1887, p. 37. The act provides that "the petition may be presented to the circuit court when in session, or to any judge thereof in vacation." It further provides that "upon filing the petition a summons shall be issued, giving the defendants at least ten days' notice of the time when said petition will be heard, which summons shall be served in the same manner as writs of summons are or may be by law required to be served." It is further provided that if the name or residence of the defendants, or any of them, be unknown, or if they, or any of them, do not reside within the state, they may be served by publication four weeks before the day of hearing the petition. It is further provided that the commissioners appointed by the judge or court "shall meet upon the premises at a time by them to be appointed of which they shall give personal notice to the owners, or their agents, of the land affected if they can be found as well as five days' notice by advertisement in the newspaper doing the city printing." The construction of this statute must determine the validity of these proceedings. The wisdom of the common law rule that no man shall have his rights judicially ascertained without notice is nowhere more apparent than in proceedings to condemn private property for public use. The legislation of this state, looking to the exercise of eminent domain, has uniformly required personal service if it could be had. It is generally conceded that the legislature may prescribe the character of the notice, and a substantial compliance with the statute must be observed. A reading of this statute will, we think, demonstrate that the proceedings under it must be begun by presenting the petition to the court, if in session, and if the court is not in session, to a judge thereof in vacation. There is no other alternative in the statute. The petition cannot be presented to any other officer. The proceeding is, and is intended to be, summary to a large extent. The forms and methods of procedure in other actions afford but little aid. The legislature has adopted a procedure peculiar to this class of cases. The defendant construes the statute as permitting the city to commence the proceeding as it would any ordinary civil action, by filing the petition with the clerk and the issue of an ordinary summons, save that it only requires 10 days' notice instead of the 15 in other civil cases. But it seems apparent to us that the legislature, for its own reasons, intended that these proceedings, affecting so vitally the rights of private property, should commence with an order from the judge of the circuit court. It will be noted that it is the judge or the court who is to appoint the commissioners, and, in this connection, that the summons issued shall give the defendant landowners at least 10 days' notice. The length of the notice, then, is discretionary. In whom is it vested? We think, most clearly, not in the clerk, but in the court or judge to whom the petition is presented. He must determine whether the petition is sufficient. He knows best when and where he can hear the proof of service, and appoint the commissioners, and is best able to judge of the exigency. Unless the judge or court was to pass on the petition, and fix the time and place for the hearing, and specify the length of notice, the requirement that it should be presented to the court or judge would be entirely meaningless. Who but the judge himself could determine, in vacation, where and when he would hear the proof of service? Who, in term time, could so appropriately fix the time with reference to the business of the court as the judge? Had it been the intention to institute these proceedings before the clerk, how simple it would have been to have authorized the filing of the petition with the clerk, and authorized him to set the time.

But not only is this statute capable of no other reasonable construction on its face, but this view is strengthened by other statutes in pari materia. Thus, in proceedings to condemn lands and water by corporations to supply cities with water, section 2796, Rev. St., provides: "Upon the presenting of the petition mentioned in the foregoing section to the circuit judge, he shall order the petition filed and a summons to issue giving such owners at least ten days' notice of the time when the petition will be heard." And, in the article providing for the appropriation of lands for telegraph, telephone, gravel, plank roads, and railroads (sections 2734-2736), the presentation to the court or judge precedes the filing of the petition with the clerk. Moreover, when the statute imposes an independent duty on the clerk, it uses no uncertain language. Thus, when the...