Williams v. Kirby

• Decision Date: 27 October 1902
• Citation: 70 S.W. 140,169 Mo. 622
• Parties: WILLIAMS et al. v. KIRBY, Appellant
• Court: Missouri Supreme Court

70 S.W. 140

169 Mo. 622

WILLIAMS et al. v. KIRBY, Appellant

Supreme Court of Missouri, Second Division

October 27, 1902

Appeal from New Madrid Circuit Court. -- Hon. Henry C. Riley, Judge.

Reversed.

Charles Nagel for appellant; Daniel N. Kirby pro se.

(1) The proceeding for condemnation, being in rem and purely statutory, every material requirement of the statute must be strictly complied with, and all facts required by the statute to be stated must affirmatively appear on the face of the record, or the county court will not acquire jurisdiction over the subject-matter. Railroad v. Young, 96 Mo 41; Jefferson Co. v. Cowan, 54 Mo. 237; Whitely v. Platte Co., 73 Mo. 30; Zimmermann v Snowden, 88 Mo. 220; Anderson v. Pemberton, 89 Mo. 65; Colville v. Judy, 73 Mo. 654; Railroad v. Hoereth, 144 Mo. 148. (2) The transcript shows the following defects in the proceedings in the county court each of which, under the rule recognized by above cases, operated to prevent that court from acquiring jurisdiction: (a) The petition for condemnation failed to "specify the termination" of the proposed right of way. The attempt to state "the termination" was contained in these words: "To a point in what is known as the 'Highland' in survey 1051, sec. 17." The point is not located, and the "highland" is evidently of considerable extent, so that the proposed termination might be anywhere in the highland in that survey, and the description is too indefinite. Peterson v. Beha, 161 Mo. 520. (b) The petition fails to state the amount of damages claimed by appellant for his land. This was required by section 7796, Revised Statutes 1889, as amended by Laws 1893, p. 222. (c) The report of the commissioners failed to describe the land sought to be condemned. This was required by section 7799, Revised Statutes 1889, as amended Laws 1893, p. 223. (d) The report of the commissioners instead of describing the strip of land set out in the petition, and in the order of court appointing commissioners, "did assess the damages to Daniel N. Kirby, to the following described land in the county of New Madrid, to-wit, section 17, township 27, range 14 east, at the sum of forty dollars." So that they assessed the whole section in which the proposed strip was located, under an order of court directing them to assess the strip only. So far as the record shows, there was, therefore, no assessment of the strip sought to be condemned. (3) An appeal lay from the county court to the circuit court, which thereupon became possessed of the cause for trial de novo. Appeals from the county court are to be perfected in the same manner as appeals from justices of the peace. R. S. 1889, sec. 7801; Colville v. Judy, 73 Mo. 651. (4) The appeal was properly taken. The affidavit and bond for appeal were filed within ten days after the judgment of the county court condemning the land. Thereafter, the papers in the case were returned by the county clerk to the clerk of the circuit court with a transcript of the proceedings in the county court. Under section 6334, Revised Statutes 1889, this constituted a proper appeal even if no formal order allowing an appeal had been made by the county court. Long Bros. v. Bolen Coal Co., 65 Mo.App. 608; Jester v. McKinney, 47 Mo.App. 63. (5) The county court having had no jurisdiction over the subject-matter, none was acquired by the circuit court on appeal, and none by this court. Webb v. Tweedie, 30 Mo. 488; Dillard v. Railroad, 58 Mo. 73; Planing Mill v. Short, 58 Mo.App. 322. The want of jurisdiction in the trial court being apparent on the face of the record, may be raised for the first time in this court, on appeal. Bray v. Marshall, 66 Mo. 122; Parlin v. Hord, 145 Mo. 118. (6) The posted notice, and the petition filed in the county court, were sufficient, with the defendant's appearance, to give that court jurisdiction over the parties. The appeal from that court having been properly taken, the circuit court likewise acquired jurisdiction over the parties, and it erred in dismissing plaintiffs' appeal. As the result this court in turn has jurisdiction over the parties, and if the court should not consider our motion to dismiss the proceedings well founded, then the judgment of the circuit court dismissing the appeal should nevertheless be reversed and the cause remanded, with directions to the circuit court to dismiss the suit at plaintiffs' cost.

J. R. Bruer and R. B. Oliver for respondents.

OPINION

BURGESS, J.

This proceeding was begun in the county court of New Madrid county, by plaintiffs, to condemn for levee purposes a right of way over certain lands belonging to the defendant. The strip of land sought to be condemned was described in the posted notice as follows: "A strip of land 112 feet wide, beginning on the north boundary line of survey No. 2928, running in a northerly direction to the south boundary line of survey No. 1051, and lying west of and immediately adjacent to the Point Pleasant and New Madrid public road."

After this notice was posted, a petition for condemnation was filed in the county court, in which the strip of land was described as follows: "A strip of land 112 feet wide running in a northerly direction, and lying west of, and immediately adjacent to, and alongside of what is known as the New Madrid and Point Pleasant road, to a point in what is known as the Highland in survey 1051, section 17, township 21, range 14 east."

The petition was filed August 6, 1895. On August 7, 1895, the county court appointed commissioners to view and assess the strip of land, describing it in the same terms used in the petition. On November 4, 1895, the commissioners filed their report describing the land assessed by them, as follows: "The following described land in the county of New Madrid, Missouri, to-wit, section 17, township 27, range 14 east."

On February 5, 1896, the county court rendered judgment of condemnation, describing the strip, as follows: "A strip of land 112 feet wide, beginning on the north boundary line of survey 2928, in section 17, township 21, range 14 east, running in a northern direction, and lying east of and immediately adjacent to what is known as the New Madrid and Point Pleasant public road, to a point in what is known as the 'Highlands' in survey 1051, in section 17, township 21, range 14 east."

On February 13, 1896, the defendant filed in the office of the clerk of the county court his affidavit for appeal; notice of appeal duly served, and an appeal bond. On February 22, 1896, at the next term of the county court, the appeal bond was approved, but the court made no order allowing the appeal.

The clerk of the county court returned the papers in the case to the clerk of the circuit court of New Madrid county, in which court the plaintiffs filed a motion to dismiss the appeal, on the ground that the county court of New Madrid county had never granted an appeal. The circuit court of that county at the September term, 1897, sustained plaintiffs' motion and dismissed defendant's appeal to the circuit court. From this judgment of dismissal an appeal was taken to this court.

Defendant has filed in this court a motion to dismiss these proceedings, on the ground that the record discloses that the county court had no jurisdiction to render judgment of condemnation, and hence, neither the circuit court nor the Supreme Court acquired jurisdiction of this appeal. But as the case has been fully briefed by defendant, which covers all the points presented by the motion to dismiss, we will dispose of the appeal upon its merits regardless of that motion.

It may be conceded at the outset that, proceedings to condemn private property for public use being in rem, they must affirmatively show every fact necessary to confer jurisdiction on the tribunal in which had.

This defendant claims the record, in the case in hand, not only fails to affirmatively show, but shows otherwise.

The act creating the St. Francis Levee District of Missouri provides that in case the board of directors can not procure the voluntary relinquishment of the desired right of way, "they shall proceed as provided by the law of this State regulating the manner of obtaining the right of way for public roads." [Laws of Missouri, 1893, p. 200, sec. 24.] The road law then in force provides that the petition for condemnation for the right of way for public roads, shall "specify the proposed beginning, course and termination" of the proposed right of way, and also state the amount of damages claimed by the owner of the land sought to be condemned. [R. S. 1889, sec. 7796, as amended by Laws of 1893, p, 222.] And also that the report...