Board of Regents v. Palmer, 40175.

• Citation: 204 S.W.2d 291
• Decision Date: 08 September 1947
• Docket Number: No. 40175.,40175.
• Parties: THE BOARD OF REGENTS FOR THE NORTHEAST MISSOURI STATE TEACHERS COLLEGE v. CORA I. PALMER, GEORGE E. GRIM, CLARENCE F. GRIM, SARAH M. GRIM WIMP, JESSE J. WIMP, DOROTHEA MAY GRIM MOREY, ROLLO J. MOREY and HUBERT L. COLLETT, Appellants.
• Court: United States State Supreme Court of Missouri

204 S.W.2d 291 THE BOARD OF REGENTS FOR THE NORTHEAST MISSOURI STATE TEACHERS COLLEGE
v.
CORA I. PALMER, GEORGE E. GRIM, CLARENCE F. GRIM, SARAH M. GRIM WIMP, JESSE J. WIMP, DOROTHEA MAY GRIM MOREY, ROLLO J. MOREY and HUBERT L. COLLETT, Appellants. No. 40175. Supreme Court of Missouri. Division Two, September 8, 1947.

[204 S.W.2d 292]

Appeal from Schuyler Circuit Court. — Hon. Walter A. Higbee, Judge.

AFFIRMED.

Robert N. Jones, W.C. Frank, George J. England and Philip J. Fowler for appellant.

(1) Defendants were not regularly summoned in court. The service which was had and the summons which was issued to each of them was for a much shorter time than required by law. Sec. 58, General Code for Civil Proceedure; Laws 1943, p. 375. (2) The court erred in not allowing defendant Cora I. Palmer a change of venue, when proper application was filed, at the time when she was first in court and was entitled to a change of venue. Art. XI, Chap. 6, R.S. 1939. (3) The judgment under the evidence is against the law, and is against the law under the evidence. Sec. 27, Art. I, Mo. Constitution of 1945. (4) The findings were founded upon H.B. No. 932, of the 63rd General Assembly, which was signed by the Governor July 3, 1946 and no evidence was offered to show that the requirements of the law as found by the court, had been met. (5) The court at the time of hearing it had no legal right over the subject matter of the action and did not have jurisdiction over the person of all the defendants. Sec. 27, Art. I, Mo. Constitution of 1945; Sec. 58, General Code for Civil Procedure, Laws 1943, p. 378. (6) There was no showing of any necessity for the taking of the land or that it was being taken for public use. (7) There is no valid authorization for the bringing of this action. If the Board of Regents directed bringing of same, it was on May 31, 1946 and at a time when they had no legal authority of bringing such an action. (8) There is no law which authorized the Board of Regents to bring this sort of action. H.B. No. 932, p. 4, Lines 16 to 20; Sec. 27, Art. I, Mo. Constitution of 1945. (9) If same was brought under the provisions of H.B. No. 932 of the acts of the Legislature, no real emergency was shown to exist and said H.B. No. 932 was not yet in full force and effect. Mo. Constitution of 1945, Art. III, Sec. 29. (10) Under the Bill of Rights of the Constitution the right of eminent domain is only given to the State, County or City and no other authority is vested with that right. Art. I, Sec. 27, Mo. Constitution of 1945. (11) Defendants were not regularly in court, and plaintiffs do not have the right of eminent domain and if this action was brought under the provisions of House Bill No. 932, said House Bill is unconstitutional. Sec. 58, General Code for Civil Procedure; Laws 1943, p. 373; Sec. 27, Art I, Mo Constitution of 1945.

S.H. Ellison and L.F. Cottey for respondent.

(1) The first assignment is "too general to serve the purpose of a statement or specification of a point relied upon" within the meaning of Rule 1.08 of this court, and preserves nothing for review. Hartkopf v. Elliott, 99 S.W. (2d) 25; Aulgur v. Strodtman, 329 Mo. 738, 46 S.W. (2d) 172. (2) The motion to dismiss did not "state with particularity the grounds therefor" as required by Sec. 60 of the New Code for Civil Procedure. It contained nothing more than bold assertions of conclusions of law. Such conclusions, while they may suffice as a motive for filing the motion, are wholly inadequate as a statement of grounds therefor, and the motion was properly overruled for that reason. (3) Sec. 58 of the New Code for Civil Procedure. This action was brought under authority of House Bill No. 932 enacted by the 63rd General Assembly. Sec. 2 of that Bill directs that the proceedings commenced thereunder shall conform to the provisions of Chapter 8, Article 2, R.S. Mo. 1939. Sec. 1505 of said Article sets forth the manner of obtaining service on the defendants. Appellant Wimp and all of the other resident defendants in this case were duly and personally served with process in the time and manner prescribed by said Sec. 1505. (4) If any error had been committed in the particular complained of, appellant Wimp has waived it. She entered her general appearance by applying for a change of venue, by applying for leave to file answer, by entering into the trial of the cause on its merits, by filing a motion for new trial specifying many other alleged errors, and by participating in this appeal on grounds other than the one in question. Clark...