Bennett v. City of Nevada
| Decision Date | 05 July 1919 |
| Docket Number | No. 20265.,20265. |
| Citation | 213 S.W. 785,279 Mo. 211 |
| Parties | BENNETT v. CITY OF NEVADA. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Vernon County; B. G. Thurman, Judge.
Action by Mattie Belle Bennett against the City of Nevada. From judgment for plaintiff, defendant appeals. Reversed.
A. J. King, City Counselor, and M. T. January, both of Nevada, Mo., for appellant.
Chas. E. Gilbert, of Nevada, Mo., for respondent.
This action is ejectment with ouster laid on the_____day of July, 1915, and is brought against the city of Nevada alone as defendant.
The real estate involved is described as follows:
"Commence at the southwest corner of the east half of lot two (2) of the northwest quarter of section four (4), in township thirty-five (35), range thirty-one (31), in the city of Nevada, county of Vernon, and state of Missouri, from thence run north twenty (20) rods, thence east twenty (20) rods, and from the point thus found as a place of beginning run north ninety (90) feet, thence east one hundred and sixty (160) feet, thence south ninety (90) feet, thence west one hundred and sixty (160) feet to place of beginning."
It will thus be seen that the lot is 160 feet east and west and 90 feet north and south. The particular part of the lot involved here is 12 or 15 feet off the south end thereof, which lies between Main and Ash streets. Plaintiff claims that the defendant city, on the date above set forth, ousted her from the possession thereof, and took the possession itself, and that the street commissioner, acting for the city, as it is alleged, did great damage thereon by plowing and grading the soil. The answer of defendant was a general denial. The case was tried before a jury in the circuit court of Vernon county, at the February term, 1917, which resulted in a verdict for plaintiff for possession of the land in controversy and $50 damages, and monthly rents and profits fixed at $1.50 per month, upon which verdict judgment was duly entered. Motion for new trial being overruled at the same term of the court, defendant duly appealed the case to this court.
About June 15, 1915, at a meeting of the city council of defendant, it was verbally moved, seconded, and carried "that the street commissioner, under the supervision of the city engineer, be instructed to put Floral avenue, between Main and Ash streets (the strip in controversy), in proper condition." Counsel for both sides agree that no ordinance was passed authorizing the work to be done. Counsel for plaintiff proved by the city clerk that the city of Nevada had never passed an ordinance with reference to this street; this with the view of relying upon the verbal motion or resolution above set forth, upon which predicate he seeks to bind the corporation. Mr. January, for the city, made the following objection in the nature of consenting to the correctness of the proof offered by plaintiff that no ordinance had ever been passed:
As above stated, the answer of defen...
To continue reading
Request your trial