Chicago Great Western R. Co. v. Kemper

Citation166 S.W. 291,256 Mo. 279
Decision Date03 March 1914
Docket NumberNo. 16,655.,16,655.
PartiesCHICAGO GREAT WESTERN R. CO. v. KEMPER et al.
CourtMissouri Supreme Court

Appeal from Circuit Court, Andrew County; Alonzo D. Burnes, Judge.

Condemnation by the Chicago Great Western Railroad Company against Bernard P. Kemper and others and John Holtman. From a judgment for plaintiff, the last-named defendant appeals. Reversed and remanded, with directions.

J. C. Growney, of St. Joseph, for appellant. Shinabargar, Blagg & Ellison, of Maryville, for respondent.

GRAVES, J.

This is a condemnation proceeding originating in the circuit court of Nodaway county; the purpose of the condemnation being thus stated in the petition: "Plaintiff further states that as such railroad corporation it is now, and it and its predecessors for a long time have been, operating said line of railroad, which line is a continuous line between Kansas City in the state of Missouri, and the city of Chicago, in the state of Illinois, and the city of St. Paul in the state of Minnesota; that for the public use and convenience in the operation of its said line of railroad it has become and is necessary for it to construct certain division terminal facilities occupying about * * * acres and extending in a general northerly and southerly direction over said sections 11, 14 and 23, consisting of a roundhouse, switch tracks, storage tracks, connecting tracks, machine shops, etc., together with the necessary grading therefor, which are to constitute a part of said system and line of railroad. Plaintiff further states that it has acquired by purchase or donation all the land required for said improvement except a certain tract owned by the defendant Bernard P. Kemper, who now occupies the same, and a certain tract owned by John Holtman, who now occupies the same." Upon the presentation of the petition to Hon. William C. Ellison, judge of the Fourth judicial circuit of Missouri, he in vacation ordered the same filed by the clerk of the Nodaway county circuit court, and that summons be issued to all the defendants to appear at his office in the city of Maryville on August 20, 1910, when and where he would hear said petition, and defendants could make such objections as they thought proper. Defendants appeared on August 20th and applied for a change of venue from Judge Ellison. This application was sustained and the cause sent to the circuit court of Andrew county. On September 3, 1910, the defendant (and sole appellant here) John Holtman and other defendants filed, in vacation of that court, their objections to the petition and their protests against the appointment of commissioners. These were lengthy and will be noted later, if occasion requires. The matter seems to have been continued from time to time until finally, on October 29, 1910, Judge Burnes of the Andrew county circuit court concluded his hearing of the petition of the plaintiff and the objections of the defendants thereto, and found that it was necessary for plaintiff to have about 70 acres of land for the purposes stated in its petition, which included the land of John Holtman or in which he was interested. Commissioners were appointed to assess the damages. On November 11, 1910, these commissioners filed their report (in vacation of the Andrew county circuit court) in which damages to John Holtman, Joseph Holtman, and Nathaniel Sisson were allowed in the sum of $1,500. November 18th, and during the November term of said court, John Holtman and Bernard P. Kemper filed exceptions to the report of the commissioners. The record presented to this court then thus details the trial judgment: "Upon the issues thus presented, the cause was called for trial at the regular February, 1911, term of said circuit court, of the 28th of February, 1911, the same being the second day of said term, the parties appeared in persons and by their respective attorneys, and, as a result of a trial before a jury, a verdict for defendants was returned on March 1, 1911, in open court, assessing the damages sustained by Bernard P. Kemper at $1,238.40, and by John Holtman at $1,399.50. And thereupon on said date the court rendered judgment on said verdict in words and figures as follows, viz.: `It is therefore ordered, considered, and adjudged by the court that the defendant Bernard P. Kemper have and recover of and from the plaintiff the said sum of $1,238.50, so found by the jury as aforesaid, and that the defendant John Holtman have and recover of and from the plaintiff the said sum of $1,399.50 so found by the jury as aforesaid.'" Motion for new trial was filed in due time, and this passed over to the May term of the court. At this time the defendant Kemper withdrew his motion for new trial, and the motion was overruled as to the defendant John Holtman. From this judgment, Holtman, alone, has appealed.

By an additional abstract prepared by the plaintiff, it appears that plaintiff paid into court on November 17th the money assessed by the commissioners, for the several defendants. And further that at a later term (date not shown) the defendant John Holtman received such money and receipted of record therefor. This outlines the case. Additional matters will be noted in the course of the opinion in connection with the points made.

I. Appellant, although he applied for and got a change of venue from Judge Ellison's court, now complains of the jurisdiction of the Andrew county circuit court. All this arises over the wording of the order, and, as appellant claims, the wrong use of the word "court" for "cause." Appellant sets out the order thus: "And the venue of said court is accordingly hereby ordered changed to the said circuit court of Andrew county." Respondent files an additional abstract of the record and makes said order read "cause" instead of "court." This contention of the appellant should not be entertained for two reasons at least: (1) It is apparent that if the order really shows the word "court" it was a mere clerical mistake; and (2) because appellant relied upon no such question in the court below. In the Andrew county circuit court he did challenge the validity of the change of venue, but did it in this language: "That the court has no jurisdiction of the subject-matter of this suit, because the order of the circuit court of Nodaway county, Mo., awarding a change of venue herein is null and void, neither has this court jurisdiction of the person of the defendants named in plaintiff's petition, for the reason that the circuit court of Nodaway county had not acquired jurisdiction of the person of all said defendants at the time of making the...

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