Lovitt v. Russell
| Decision Date | 03 April 1897 |
| Parties | Lovitt v. Russell, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. John W. Henry, Judge.
Reversed and remanded with directions.
Kinley Carskadon & Kinley for appellant.
(1) This proceeding is a collateral attack on a judgment, hence unless the circuit court was absolutely without jurisdiction the judgment will be held valid; irregularities, if any, will not affect the same; if the judgment was irregular or voidable, but not void, it will support the execution and sale, and the sheriff's deed will vest title in the purchaser. Charley v. Kelley, 120 Mo. 134; Burke v. Kansas City, 118 Mo. 309; 23 S.W. 613; Wellshear v. Kelley, 69 Mo. 351; Allen v. McCabe, 93 Mo 143; Mason v. Messenger et al., 17 Iowa 261; Quayle v. Railroad, 63 Mo. 465. (2) The plaintiff took title to this property, subject to these proceedings, and is bound by all these proceedings. The owners of the lot were, as it is admitted in the record, properly in the mayor's court, and there is no complaint or claim of any kind affecting the proceedings until the case is appealed to the circuit court; then after the circuit court acquired jurisdiction it is claimed that the failure to continue the proceedings from time to time affected the jurisdiction of the court. If these lapses affect the proceedings at all, they are mere irregularities, and do not affect the judgment. Brown v. Walker, 85 Mo. 262; Townsend v. Cox, 45 Mo. 402. (3) All intendments are indulged in to support judgments of courts of record where jurisdiction of the proceedings appears. Errors or irregularities will not interfere with such presumptions. The setting aside the verdict of the jury and the judgment rendered thereon by the circuit court on February 7, 1891, would not affect the jurisdiction of the court, nor would all subsequent proceedings be void. If error, it should have been remedied by appeal; this not having been done, it can not be attacked collaterally, as attempted in this case. 1 Black on Judg., par. 270; Blake v. Lyon Mfg. Co., 77 N.Y. 626; Hilton v. Bachman, 24 Neb. 490; Voorhees v. Jackson, 10 Peters, 449-472; Van Fleet Coll. Att. Tit. Presumptions; Ellis v. Jones, 51 Mo. 180-186; Crenshaw v. Snyder, 117 Mo. 167, 177. (4) The power of the circuit court to hear these appeals from the mayor's court is a judicial power, and when rightly called into play, must be regarded within the sphere of its legitimate operation as giving the circuit court the authority to pass judgment in this case, which involves the exercise of judicial power and carries with it that conclusive sanction which is necessary to make the judgment effective. Railroad v. Lackland, 25 Mo. 515; Holt Co. v. Cannon, 114 Mo. 514; Union Depot v. Frederick, 117 Mo. 138; Lingo v. Burford, 112 Mo. 149.
Clarence S. Palmer for respondent.
(1) The charter provides that when the case be filed, it shall be immediately docketed upon the filing of the transcript and stand for trial, and shall at the same term, and shall always, stand for trial, and shall not in any case be continued to any succeeding term, but for good cause may be postponed from week to week in the discretion of the circuit judge. Even if jurisdiction has been acquired in a condemnation case by the tribunal before which it is to be tried, such jurisdiction may be lost. Lewis on Em. Dom., sec. 603; Mills on Em. Dom., sec. 90. (2) If the statutory remedy is not strictly followed, no title or easement is obtained, and the condemning party has no defense to the usual common law action. Mills on Em. Dom. [2 Ed.], sec. 90; Blaisdell v. Winthorp, 118 Mass. 138; Lewis on Em. Dom., sec. 657; Breese v. Poole, 16 Ill.App. 551; City of New Orleans, in proceeding to open Dryades street, 11 La. Ann. 458. The last case is exactly in point as the facts are almost exactly identical with the facts in this case, where the jury did not report at the time specified. (3) In this case the execution was issued for the gross amount of benefits instead of the net amount of the benefits, after deducting damages. Execution must conform to judgment, and a material variance is fatal. 7 Am. and Eng. Ency. of Law, 124, note 1. (4) The defendant is not a purchaser without notice. He had notice of all proceedings in the suit upon which the judgment rested. Mitchell v. Jones, 50 Mo. 438; McPike v. Allman, 53 Mo. 551; Downing v. Still, 43 Mo. 309. (5) The order of the court granting a new trial will not be interfered with unless its discretion has been abused or injustice has been done. McCullough v. Phoenix Ins. Co., 113 Mo. 606 (919). (6) A bill in equity to set aside a sale will be sustained in some cases where the sheriff's deed would be conclusive at law. Groner v. Smith, 49 Mo. 318.
This was a suit brought by the plaintiff to quiet title to all of lot ninety, Altamont, in Kansas City, Missouri, except five feet off the east end of said lot, and to have a sheriff's deed held and declared void.
The controversy arises over proceedings to condemn five feet off the east end of lot ninety, Altamont, for the purpose of widening Brooklyn avenue in said city. The proceedings were begun in the mayor's court of the city of Kansas, in pursuance of the charter, on July 10, 1888, at which time the title to said lot was in Zachariah F. Arnold, Cornelius Maloney, Charles Finley, Martin Regan, and John F. Williams, Jr., all of whom, it is conceded, were legally brought into said mayor's court by virtue of personal service or publication. On the thirtieth day of November, 1888, the above named parties, the owners of said lot, conveyed the same to T. C. Alexander, and he, on the same day, conveyed said lot to H. C. Arnold, and on the fifteenth day of April, 1889, said Arnold and wife conveyed said lot to plaintiff by warranty deed with reservations as follows: "Subject to a deed of trust, dated January 17, 1887, and recorded in book "B" 190, at page 369, to secure a note of even date for $ 700 and interest at eight per cent, also condemnation of five feet in Brooklyn and grading Thirtieth street." The clauses of warranty also excepted above encumbrances.
On November 13, 1888, the mayor of Kansas City made an order impaneling a jury to assess benefits and damages caused by such widening of said Brooklyn avenue, and on March 29, 1889, the mayor's jury returned a verdict and the same was on that day filed with the city clerk; on the sixth day of April, 1889, as required by the charter of Kansas City, the verdict of the jury was confirmed by the common council and on the ninth day of April, 1889, the mayor made the proper order provided by the charter to be made by such officer after confirmation. Up to this period it is conceded by plaintiff that all proceedings in regard to this lot were legal and regular.
On April 11, 1889, on April 17, 1889, and April 24, 1889 affidavits for appeal were filed in the office of the city clerk, and on May 16, 1889, a complete transcript of all proceedings therein were filed in the office of the clerk of the circuit court of Jackson county, Missouri. On June 22, 1889, a jury was selected to assess damages and benefits in such proceedings. This was during the April term of that year. On June 28, 1889, the court made an order excusing the jury until July 6. The next entry of record is of date October 12, 1889, still during the April term of that year, at which time the court made an order that the jury be allowed to report their verdict on October 26, this being during the October term of that year. On October 26, the jury filed its verdict or report, and on October 30, a motion for a new trial was made, and on February 24, 1890, the verdict of the jury was confirmed. On December 20, 1890, a motion was filed by Charles F. Quest and Margaret Quest to set aside the jury's verdict and the judgment rendered under said proceedings, which motion was on February 7, 1891, sustained. On February 28, 1891, the city counselor filed a motion to retax the costs, which on February 28 was sustained. On July 11, 1891, by order of court, the proceedings were transferred from division number 2 to division number 1, because division number 2 was about to adjourn and on July 15 division number 1 made an order continuing the proceedings to the first day of the next October term, being the twelfth day of October, 1891. On October 12, the proceedings were continued to November 2; on November 2 the proceedings were continued to November 7; on November 7 the city counselor asks that Nannie E. Long be made a party and the proceedings were continued to November 21; on November 21, 1891, the city counselor shows to the court that the old verdict had been set aside, and asks that new notices be sent out in the same way the original proceeding is started in the mayor's court, setting the day of hearing for January 11, 1892. On January 11, 1892, proof of service is made and the court orders publication to those not served and adjourns the proceedings until January 22, 1892; on January 22, 1892, the proceedings were adjourned to January 25, 1892; on January 25 a jury was selected and the proceedings were continued to January 30; on January 28 C. Frank makes a motion to be allowed to be made a party; on January 30, 1892, the proceedings were continued to February 1; on February 1 the hearing was begun and continued to the second, and it was further continued to the third; on February 3 an order was made extending the time for the jury to report their verdict until February 20; on February 20 the jury filed their verdict and were discharged. On May 2, 1892, the court made an order confirming the verdict and finding of the jury, and further adjudging...
To continue reading
Request your trial