State ex rel. Greely v. City of St. Louis

• Decision Date: 31 October 1877
• Citation: 67 Mo. 113
• Parties: STATE ex rel. GREELY v. CITY OF ST. LOUIS, et al., Appellants.
• Court: Missouri Supreme Court

67 Mo. 113

STATE ex rel. GREELY

v.CITY OF ST. LOUIS, et al., Appellants.

Supreme Court of Missouri.

October Term, 1877.

Appeal from St. Louis Court of Appeals.

Leverett Bell with W. H. Horner and Joseph Dickson for appellants.

The return of the marshal is sufficient. The words, “personal service,” have a fixed, definite and well-known meaning, and indicate that he either read or delivered a notice to the parties personally. The meaning of the officer may be gathered from the face of the return--all portions being regarded, and that is all that the law requires. That he meant that he delivered or read the notice to the persons named as having been “personally served,” is clear, when we consider that his return is in three parts. As to one class, he says he executed the writ by “having had personal service;” as to another class, by leaving at the usual place of abode, and still another that he could not find them and therefore served such by publication. Aside from this, the law did not require the marshal to give persons, whose property might be assessed benefits, any particular kind of notice; nor did it require him to serve it in any particular manner. Had the law-makers intended to prescribe any particular form of notice, or any special manner of serving same on the parties to be assessed benefits, they would have so declared, as they did in the first part of the same section as to notice to be given to parties whose land it was proposed to condemn. Laws of Mo. 1870, p. 478, § 2. By this section it will appear that the only particular in which the two notices are similar, is in the requirement that in case of a published notice the “terms of time” are the same.

Futhermore, the ambiguity of the return is not such an error as will warrant the total setting aside and annulling of this important proceeding. An amendment of the return has been allowed in cases similar to case now under discussion, and it has been held that an officer may amend his return after the case has been appealed and is in the Supreme Court. And the officer in this case did amend the return, curing the alleged defect. Blaisdell v. Steamboat Pope, 19 Mo. 159; Stewart v. Stringer, 45 Mo. 115; Muldrow v. Bates, 5 Mo. 214; Wag. Stat., pp. 1036-7, §§ 19, 20; Phillips v. Evans, 64 Mo. 17.

S. A. Holmes for respondent.

1. There must be a strict compliance with all the requirements of the statute in proceedings to take property for public use, and that compliance must appear upon the face of the proceeding, or they are void. Ells v. Pacific R. R., 51 Mo. 200; Leslie v. St. Louis, 47 Mo. 474; Anderson v. St. Louis, 47 Mo. 479; Ruggles v. Collier, 43 Mo. 353.

2. The land commissioner acquired no jurisdiction of the relators or their property in the proceedings before him. There was no service of the notice as to them, and in contemplation of law they had no notice, and, as to them, the proceeding is void. Sess. Acts 1870, Sec. 2, p. 478; Dickey v. Tennison, 27 Mo. 373; Boonville v. Ormrod, 26 Mo. 193; Waddingham v. St. Louis, 14 Mo. 190; Hewitt v. Weatherby, 57 Mo. 276; Charless v. Marney, 1 Mo. 537; Smith v. Rollins, 25 Mo. 408; Huff v. Shepard, 58 Mo. 246; 2 Dillon on Mun. Corp. (2 Ed.) § 471, p. 571.

NORTON, J.

This is a proceeding by certiorari in the circuit court of St. Louis county, the purpose of which is to correct certain alleged errors of the land commissioner of the city of St. Louis, in the assessment of benefits against relators growing out of opening Franklin Avenue, a street of said city. On the trial, judgment was rendered for defendants, which, on appeal to the St. Louis Court of Appeals, was reversed and judgment rendered for plaintiffs, from which defendants have appealed to this court.

It is claimed that the record discloses five valid objections to the legality of the proceedings of the land commissioner, one of which is as follow, viz: that it nowhere appears from the said record that either of the said relators had any legal or proper notice of the proceedings of said land commissioner in opening Franklin Avenue. The law authorizing the proceeding provides that, in opening any street, six days notice shall be given to the persons whose property is to be condemned, and that the notice shall be served by the city marshal, either by delivering the same to the person, or by leaving a copy thereof at the usual place of abode of such person, with some member of the family over the age of fifteen years; also, that the land commissioner shall cause a notice of the commencement or pendency of proceedings for the assessment of benefits with which to meet payments of any such damages to be given to any person whose property it is proposed...