The City of Edina v. Shoot

• Decision Date: 25 June 1895
• Citation: 31 S.W. 767,129 Mo. 354
• Parties: The City of Edina, Appellant, v. Shoot
• Court: Missouri Supreme Court

31 S.W. 767

129 Mo. 354

The City of Edina, Appellant, v. Shoot

Supreme Court of Missouri, First Division

June 25, 1895

Appeal from Knox Circuit Court. -- Hon. B. E. Turner, Judge.

Affirmed.

L. F Cottey for appellant.

(1) Service on the mayor and the clerk, and certain other persons, is not a compliance with this statute. "The service of a summons on a party in his individual capacity gives the court no jurisdiction over him in his representative capacity." Doering v. Kenamore, 36 Mo.App. 150; Blodgett v. Schaffer, 94 Mo. 652. (2) Notice as required by the statute must be given in appeals in condemnation proceedings. Klein v Railroad, 30 Minn. 451. (3) Notice as required by the statute is jurisdictional, and appearance for the purpose of moving to dismiss the appeal does not cure it. Spurrier v. Wirtner, 48 Iowa 486. (4) When the statute designates a particular officer to whom the process may be delivered and with whom it may be left as service upon the corporation, no other officer or person can be substituted in his place. Weil v. Greene County, 69 Mo. 283; Watertown v Robinson, 69 Wis. 230; Chambers v. Bridge Manufactory, 16 Kan. 270; Beach on Pub. Cor., sec. 1646.

G. R. Balthrope for respondent.

(1) This special statute not being in itself complete as to the manner or form of the notice of appeal and the service of the same on plaintiff, the mode of service must be governed by the general statutes. R. S. 1889, sec. 2033. See Railroad v. Swan, 120 Mo. 30, and authorities there cited. (2) The service being upon John Ennis, clerk of plaintiff, is sufficient. R. S. 1889, sec. 2033, supra. (3) And even if there had been no statutory service in this case, still the service on the mayor and aldermen would have been sufficient to put plaintiff on the inquiry and compel it to act in this case. 16 Am. & Eng. Encyclopedia of Law, pp. 792-795. There is nothing in the claim of appellant that it was necessary for respondent to file affidavit of appeal. The statute does not require it. See section 1589, R. S. 1889.

OPINION

Robinson, J.

This is a proceeding to condemn defendant's property for the purpose of opening and establishing Cottey street in the city of Edina, Knox county, a city of the fourth class.

The mayor and board of aldermen, proceeding under section 1589 of the Revised Statutes, 1889, providing for the appropriation of private property for street purposes in cities of the fourth class, on the first day of May, 1893, appointed commissioners to assess defendant's damages for the taking of her property. On the fifth day of June of the same year, the commissioners found and reported to the board of aldermen that defendant sustained no damages by reason of the opening of said street. On the third day of July following, the mayor and board of aldermen caused to be entered upon the journal of their proceedings an order approving the report of the commissioners.

On the thirteenth day of July defendant duly filed her written exceptions to the commissioners' report, in the office of the clerk of Knox circuit court, and on the seventeenth day of October of the same year gave plaintiff written notice of appeal from the order approving the report of the commissioners, which notice and the service thereof, omitting caption, is as follows:

"To the Board of Aldermen of the City of Edina, Knox County, Missouri.

"You are hereby notified that I have appealed from your order approving the report of the commissioners (Rufus M. Ringer, William J. Slaughter and V. E. Lycan) appointed by you on the the first day of May, 1893, to assess damages to me and others for the location and establishment of Cottey street on and over my lands in said city of Edina. Said report being dated the fifth day of June, 1893; and said order of approval being dated the third day of July 1893; and that said appeal is taken to said circuit court of Knox county, Missouri, from said order of approval and from said report of said commissioners and from all orders or proceedings of said board of aldermen in said premises.

"Given under my hand this tenth day of October, 1893.

Mary L. Shoot, Appellant.

"By G. R. Balthrope, her Attorney.

"State of Missouri,)

"County of Knox.)

ss.)

"I hereby certify that I served the within writ and foregoing notice on the board of aldermen of the city of Edina, Knox county, Missouri, by delivering a true copy to Cyrus R. Fowler, mayor, and by delivering a true copy of the same to each of the following named aldermen of said city, to wit: John Granger, Samuel Randolph, Custer Sharp, James Cody, Frank Gordon and John Ennis, clerk of said board.

"Done at said city of Edina, on this seventeenth day of October, A. D. 1893.

"W. H. Fickel,

"Sheriff Knox County, Missouri."

At the time of the service of the notice the board of aldermen was not in session.

Afterward, on the eighth day of December, 1893, at the December term of the Knox circuit court, plaintiff filed in said condemnation proceedings a motion to strike the case from the docket upon the grounds:

"First. It is an attempt to take an appeal from the action of the board of aldermen of said city in approving and confirming the report of commissioners, appointed by the mayor and board of aldermen of said city, to assess damages, if any, done to plaintiff's property by the location and opening of a certain street in said city, which said report was approved by plaintiff's board of aldermen, July 3, 1893.

"Second. Because the defendant failed to give written notice of such appeal to said board of aldermen at least fifteen days before the first day of the term to which said appeal is taken.

"Third. Because the defendant has not given plaintiff's board of aldermen written notice of her intention to take an appeal in said cause fifteen days before the first day of this term of this court as required by the statutes in such appeal.

"Fourth. Because the defendant has filed no affidavit with plaintiff's mayor or board of aldermen stating that she was aggrieved by the judgment and order of said board of aldermen approving said report of commissioners, July 3, 1893.

Fifth. Because no appeal has been taken from the action of said board of aldermen approving said report, and this court has acquired no jurisdiction of said cause."

On the hearing of this motion plaintiff read in evidence an ordinance of the city of Edina showing that the regular meetings of the board of aldermen were required to be held at the office of the mayor on the first...