Big Tarkio Drainage Dist. v. Voltmer

• Decision Date: 24 March 1914
• Citation: 256 Mo. 152,165 S.W. 338
• Parties: BIG TARKIO DRAINAGE DIST. v. VOLTMER.
• Court: Missouri Supreme Court

165 S.W. 338

256 Mo. 152

BIG TARKIO DRAINAGE DIST. v. VOLTMER.

Supreme Court of Missouri, Division No. 2.

March 24, 1914.

1. DRAINS (§ 82)—APPEAL—RIGHT.

Under Rev. St. 1909, § 2038, allowing an appeal in any civil action in which an appeal is not prohibited by the Constitution, an appeal is allowable in a proceeding to assess benefits and damages from the construction of a drain.

2. DRAINS (§ 14)—JURISDICTION.

Where the decree establishing a drainage district was rendered by the circuit court of Andrew county on change of venue from Holt county, the circuit court of Andrew county alone had jurisdiction of all subsequent proceedings, including the appointment of commissioners and assessment of benefits and damages.

3. COURTS (§§ 24, 37)—JURISDICTION OF SUBJECT-MATTER —WAIVER.

While want of jurisdiction over the person may be waived, want of jurisdiction over the subject-matter cannot be waived nor jurisdiction conferred, even by consent.

4. COURTS (§ 37)—JURISDICTION OF SUBJECT-MATTER — WAIVER OF OBJECTION.

While a change of venue because of objection to the judge merely disqualifies the judge, which disqualification may be waived, where venue is changed to some other court on account of such disqualification, the lack of jurisdiction in the court from which venue was changed over the subject-matter of the litigation cannot be waived.

Appeal from Circuit Court, Holt County; W. C. Ellison, Judge.

Proceeding by the Big Tarkio Drainage District against Fritz Voltmer to assess benefits and damages for the establishment of the district. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions to dismiss.

This is a proceeding to assess benefits and damages to appellant's land, growing out of the establishment of the Big Tarkio drainage district. The appellant is the owner of land in the district. On November 18, 1909, a proceeding was begun in the circuit court of Holt county to establish said district. A change of venue was taken to the circuit court of Andrew county, where, at the regular February term, 1910, a decree was entered incorporating said drainage district. A certified copy of that decree with a plat of said district was filed in the office of the county clerk of Holt county on March 23, 1910. No further proceeding appeared of record in the circuit court of Andrew county in said cause. On August 1, 1910, the district corporation filed with the clerk of the circuit court of Holt county an application for the appointment of commissioners for viewing the land in said district and assessing benefits and damages accruing to the lands therein by reason of the proposed improvements. The application states that the drainage district was incorporated by a decree of the circuit court of Andrew county. On August 4, 1910, that application was presented to Hon. Wm. C. Ellison, judge of the Fourth judicial district and of the circuit court of Holt county, and said commissioners were then and there appointed by said judge, and on September 30, 1910, they made their report of their proceedings as such commissioners to said court, showing the total benefits to said appellant's land, amounting to $5,715, and the total damages $2,740, leaving the net amount of benefits $2,975. On October 31, 1910, and in due time, the appellant filed his objections and exceptions to said report, the substance of which exceptions was as follows:

First. "None of the land included in the pretended drainage district and belonging to this exceptor and lying and being situate in Holt county, Mo., was ever adjudged to be included in a corporation by the circuit court of Holt county, Mo., nor by any other circuit court having any jurisdiction to declare such incorporation of the lands situate within said county; that no notice of any meeting of the landowners within said pretended drainage district was ever called within 30 days, or any other time, by the clerk of any circuit court `declaring said pretended drainage district a corporation,' and no authority was ever granted by law to the clerk of the circuit court of Holt county, Mo., to issue any notice of the time and place of meeting of landowners in said pretended drainage district to meet and elect a board of supervisors; that the pretended board of supervisors of said pretended drainage district never met, within the time and at the place required by law, and organized as required by law; that said pretended board of supervisors did not, within the time and manner prescribed by law, proceed to appoint a chief engineer for said pretended drainage district, as required by law."

Exception 2. Many of the persons owning land in said drainage district were nonresidents of Missouri and no personal service was ever had upon them, and no legal notice of such proceeding was ever given.

Exception 3. That no plan for drainage as required by law had ever been adopted by the board of supervisors for the drainage district.

Exception 7. That the judge of this court has no power to appoint commissioners to assess damages or benefits to the lands of the exceptors.

Exception 8. That the said commissioners did not in the assessment of the damages and benefits proceed in the manner...