Burke v. The City of Kansas

• Citation: 24 S.W. 48,118 Mo. 309
• Parties: Burke v. The City of Kansas, Appellant
• Decision Date: 27 November 1893
• Court: Missouri Supreme Court

24 S.W. 48

118 Mo. 309

Burke v. The City of Kansas, Appellant

Supreme Court of Missouri, First Division

November 27, 1893

118 Mo. 309 at 324.

Original Opinion of November 27, 1893, Reported at: 118 Mo. 309. [Copyrighted Material Omitted]

Motion overruled.

OPINION

ON MOTION FOR REHEARING.

Barclay J.

Plaintiff has moved for a rehearing and submitted a vigorous argument in support of the motion.

1. It is asserted that the conclusion announced is in conflict with section 7 of article 7 of the charter of Kansas City (Sess. Laws, 1875, p. 249, sec. 7), the effect of which is claimed to be, to forbid any decision upon title to property "as between different claimants or as between the city and a third party," in a condemnation suit.

In determining what meaning should be placed on that section, it must be borne in mind that it is but a part of the article or chapter governing the "opening of streets and condemnation of private property for public use." It was probably not designed to nullify all that is contained in the other sections of that article, nor to prevent the city from acquiring the title to the land, taken for public use, as against the owners, claimants, or others interested, who are properly brought before the court in the case. Section 7 is intended to make provision for instances where there is a controversy touching the ownership of the fund awarded as compensation for any piece of land to which the public has taken title in the proceedings. The chief aim of the section is to prevent delay in opening the street, by allowing the city to obtain possession of the land condemned, upon securing payment of the compensation, where there is a controversy as to its title, and without awaiting the settlement of that controversy. That provision of the law must be construed in harmony with the general design and object plainly expressed throughout the chapter of which it forms a part.

But, conceding that section 7 forbade the sort of investigation of Mr. Burke's title which was made (as shown by the evidence and instructions) in the second condemnation case, nevertheless the proper construction and application of that section involved a question of law, upon which the decision of the court, has now become final. If the present plaintiff thought that the court in that case should not have gone into the question of his title or want of title to the land sought to be condemned, it was his privilege to object, and to follow up the objection by appropriate, direct proceedings to correct any error the court may have committed in ruling thereon. It was unquestionably an issue in that case, what amount of compensation, if any, Mr. Burke was entitled to receive for his interest in the land, whatever it was; and if the court gave too wide a range to the investigation on that issue, to the prejudice of Mr. Burke, it was a judicial error which does not impair the force of the judgment on that issue when assailed collaterally. Such an error is certainly no more serious in nature than one involving a constitutional right; and an error of the latter sort has been expressly held to furnish no ground for a successful collateral attack on the judgment. Evans v. Haefner (1859), 29 Mo. 141.

2. It is next insisted that the judgment here fails to recognize the effect of the constitutional command that "the right of trial by jury as heretofore enjoyed shall remain inviolate" (art. 2, sec. 28, Const. 1875), because the circuit court, in the condemnation case, had no power to impanel a jury of twelve, but could use one of six men only; hence that the trial of Mr. Burke's title by the latter was unconstitutional.

One answer to that contention is that if there is anything of substance in it, the objection to the procedure adopted by the circuit court in that particular, should have been made in that court at the proper time. What has been said, in the latter part of the preceding paragraph, as to the futility of such an objection in a collateral proceeding need not be repeated.

3. It is then insisted that the whole drift of the original opinion is wrong, because the judgment in the second condemnation case is simply an adjudication upon Mr. Burke's title between him and the city, and, as such, is...