Leavenworth Terminal Railway and Bridge Company v. Atchison
| Citation | 37 S.W. 913,137 Mo. 218 |
| Parties | Leavenworth Terminal Railway and Bridge Company v. Atchison, Appellant |
| Decision Date | 27 January 1897 |
| Court | United States State Supreme Court of Missouri |
Appeal from Platte Circuit Court. -- Hon. W. S. Herndon, Judge.
Affirmed.
John Doniphan, H. J. Gillpatrick, and A. D. Burnes for appellants.
(1) Condemnation proceedings should be construed in strict conformity to the law, and if not, they are null and void. Shaffer v. St. Louis, 31 Mo. 264; Lind v Clemens, 44 Mo. 540; Swan v. Railroad, 38 Mo.App. 593; Fore v. Hook, 48 Mo.App. 260. (2) The order of publication was not published for three weeks before the twenty-fourth of December, and it did not set out the jurisdictional facts. The fact that the owner of the land and the party condemning can not agree on the price to be paid for the land taken must appear on the face of the proceedings. Watts on Corporation Laws of Mo. [1 Ed.] 108; Lind v. Clemens, 44 Mo. 542; Cunningham v Railroad, 61 Mo. 33; Corrigan v. Morris, 43 Mo.App. 456; Rogers v. St. Charles, 3 Mo.App. 41. (3) The clerk must notify the property owner of the filing of the report of the commissioners. Boonville v Ormrod, 26 Mo. 193; Swan v. Railroad, 38 Mo.App. 593. (4) Exceptions to the report of the commissioners must be filed within ten days after notice given by the clerk, or before. R. S., sec. 2738; Railroad v. Eubanks, 32 Mo.App. 184. (5) Where the statute requires notice without any qualification made of serving same, personal notice must be given. The law directs the clerk to give notice of the filing of the report of the commissioners, but prescribes no mode of serving it. Wilson v. Railroad, 108 Mo. 595; Allen v. Singer Mfg. Co., 72 Mo. 328; Ryan v. Kelley, 9 Mo.App. 396. (6) The notice given by the clerk was not sufficient, as it failed to inform defendant of the allowance made him or of any substantial fact except that a report was made. Personal notice is especially required when the suit is in derogation of common law rights, as taking one's property. Wade on Notice [2 Ed.], secs. 1334, 1335. (7) Even after the commissioners file their report, either party may demand a jury to reassess the damages, and the court has no jurisdiction in the matter, and a jury trial must be awarded. Railroad v. McGrew, 113 Mo. 393; Railroad v. Town Site Co., 103 Mo. 451; Rothan v. Railroad, 113 Mo. 136; Railroad v. Miller, 106 Mo. 458; Railroad v. Shambaugh, 106 Mo. 557; Railroad v. Fowler, 113 Mo. 458; Railroad v. Story, 96 Mo. 611; Thompson v. Railroad, 110 Mo. 160; sec. 21, art. 2, constitution; sec. 4, art. 12, constitution. (8) The judgment rendered at the August term was a decree that could not be changed at next term. Brown v. King, 39 Mo. 380. The 96th Mo. is conclusive of this case, as he is entitled to it after the report is confirmed, and is self-enforcing. (9) No pleadings are necessary in condemnation proceedings on the part of the defendant. Watts, Missouri Corporation Law [1 Ed.], p. 110; Railroad v. Calkins, 90 Mo. 538; Railroad v. Baker, 102 Mo. 553. (10) The judgment of the court as to the constitutional right of jury trial could not be altered at the next term unless carried over by motion, as it was final as to the right of jury. 20 Mo.App. 322; 1 Black on Judgments, 306; Bronson v. Shulten, 104 U.S. 410.
Jas. W. Coburn for respondent.
(1) It was not necessary, however, to introduce any evidence on the allegation in the petition that the parties could not agree as to the damages. Cory v. Railroad, 100 Mo. 282; Quayle v. Railroad, 63 Mo. 465. (2) The truth of the allegation will be assumed, except upon issue raised. Railroad v. Town Site Co., 103 Mo. 451. (3) The order of publication was published for three consecutive weeks: On December 2, 1892; on December 9, 1892, and on December 16, 1892, requiring appellant to appear at Liberty, Clay county, Missouri, on December 24, 1892, and recited the substance of the petition, and the date and place of the hearing of the petition. The last insertion was eight days before December 24. It was a sufficient publication. Haywood v. Russell, 44 Mo. 252; R. S. 1889, sec. 2735. (4) The notice of the filing of the commissioners' report, posted by the circuit clerk in his office on April 17, 1893, was all that the law required. Railroad v. Jones, 3 Mo. Legal News, p. 1; Wilson v. Railroad, 108 Mo. 588. (5) Under section 2738, Revised Statutes, 1889, the clerk, upon the filing of the commissioners' report, is required to notify the parties whose property is affected only "of the filing thereof." The contents of the report were not required to be stated in the notice. (6) Appearance cures defects in writ and service in a case of condemnation of a nonresident's land. Union Depot Co. v. Frederick, 21 S.W. 1118. (7) Section 2738, Revised Statutes, 1889, provides that exceptions to the commissioners' report shall be filed within ten days after the filing thereof. Appellant was entitled to a jury at some stage of the proceeding. Railroad v. Miller, 106 Mo. 461; Rothan v. Railroad, 113 Mo. 143. But a jury must be demanded within ten days after the notice of the filing of the commissioners' report. Rothan v. Railroad, 113 Mo. 142. By failing to except in ten days after the posting of the notice, appellant waived his right to a jury. Railroad v. Eubanks, 32 Mo.App. 184; Railroad v. Town Site Co., 103 Mo. 451; Merrill v. St. Louis, 83 Mo. 244. (8) It was not error in the trial court to set aside its first order setting aside the commissioners' report and awarding a jury. These rulings of the court were orders, and not decrees or judgments, and the court, upon motion, could at any time during the pendency of the case alter or set them aside. R. S. 1889, secs. 2206, 2208. (9) Neither the approval of a report nor the refusal of the court to set aside a report, constitute a final judgment. Papin v. Blumenthal, 41 Mo. 439; Buller v. Linzee, 100 Mo. 95.
This proceeding was commenced in the circuit court of Platte county, in vacation, the object of which was to condemn portions of defendant's land for a railroad and the approaches to a bridge, over the Missouri river, which was then in course of construction by plaintiff.
The petition was filed on the twenty-ninth day of November, 1892, and publication of notice to defendant, who was a nonresident of this state, was ordered. Notice was duly published, and on the twenty-fourth day of December, 1892, plaintiff applied to the judge of said court in vacation for the appointment of commissioners to assess defendant's damages. The application was continued by the judge to the April term, 1893, of said court, by an order duly entered of record.
At the April term, 1893, commissioners were appointed by the court, who made report on the seventeenth of said month, assessing the damage of defendant at $ 225.
On the same day, viz., April 17, 1893, the clerk of said court posted in his office a notice which, after giving the style of the case, was as follows:
No further order in said cause was made at that term of court.
At the August term of said court, and on the twenty-sixth of August, 1893, defendant filed his motion praying the court to set aside the report of the commissioners and award him a trial by jury of the damage he would sustain on account of the appropriation of his land.
The grounds of this motion as appeared from the affidavit in support of it were that he had no knowledge of the proceeding and that his damage would be largely in excess of that awarded him by the commissioners.
Upon a hearing at the August term the motion for a jury trial was sustained and the cause was continued to the December term.
At the December term of court plaintiff filed a motion to set aside the order of the August term, and to approve the report of commissioners, which was sustained, the order awarding a jury trial was set aside, and the report of commissioners was approved and confirmed.
Defendant filed a motion for a rehearing, assigning several grounds therefor, which, being overruled, he appealed.
I. Defendant raises, for the first time, in this court, a question of jurisdiction. It appears from copies of plats, filed in this court, that the land affected by the condemnation was originally an island in the Missouri river, lying between the town of Leavenworth, Kansas, on the west bank of the river, and the town of Weston, on the east bank of the river, in the state of Missouri, and known as Leavenworth Island. Defendant insists that the land attempted to be appropriated by this proceeding lies in the state of Kansas, and the circuit court of Platte county in the state of Missouri therefore had no jurisdiction to condemn it.
The question was not raised or determined by the circuit court. There is nothing upon the record which even suggests the jurisdictional question. The land is described throughout the proceedings as being situate in the state of Missouri. None of the motions filed by defendant in the circuit court called in question the jurisdiction of that court on account of the location of the land.
It is true that a question of the jurisdiction of a court, of the general subject-matter of a suit, can be raised at any stage of the proceeding, even for the first time in an appellate court. It can not be waived, and its consideration does not depend upon whether or not it was directly passed upon by the trial court, or whether...
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