Chicago, Santa Fe & California Railway Company v. Swan
| Decision Date | 05 February 1894 |
| Citation | 25 S.W. 534,120 Mo. 30 |
| Parties | The Chicago, Santa Fe & California Railway Company, Appellant, v. Swan |
| Court | Missouri Supreme Court |
Appeal from Carroll Circuit Court. -- L. R. Kinsey, Esq., Special Judge.
Reversed.
Gardiner Lathrop, T. J. Whiteman and S.W. Moore for appellant.
(1) It is the universal practice in condemnation cases where the statute itself is silent to refer to the practice act for guidance as to the proper procedure to be taken. Railway v. Carlisle, 94 Mo. 166; Wade on Notice, secs. 1127 and 1351; Mills on Eminent Domain, sec. 98. (2) Swan having had actual notice of the filing of the report of the commissioners and having acted thereon notice to him by the clerk was not required. Woods v. Wilson, 12 Ind 657; Board v. McGoon, 109 Ill. 142; Peavy v Wolfbrough, 37 N.H. 386; Updegraff v. Palmer, 107 Ind. 181; Milan v. Spraull, 36 Ga. 393; Ives v. Town, 48 Conn. 273; Quigley v. Providence, 9 R. I. 388; Stevens v. Board, 36 Kan. 664; Woodson Co. v. Heed, 33 Kan. 34; Cage v Frazer, 60 Miss. 563. (3) The bill of review filed by Swan was undoubtedly an appearance by him in the condemnation case.
Hale & Son and J. W. Sebree for respondent.
(1) The petition and alleged order of publication do not sufficiently describe the land; a general description is insufficient. Cory v. Railroad, 100 Mo. 290. (2) Where no method of service of notice is prescribed, personal notice is meant. Ryan v. Kelley, 9 Mo.App. 398; Allen v. Mfg. Co., 72 Mo. 328. (3) The special law providing for railway condemnation is exclusive of any general statute on the subject. Henoch v. Chaney, 61 Mo. 129; Huff v. Alsop, 64 Mo. 52; Gates v. Treston, 89 Mo. 13; Swan v. Railroad, 38 Mo.App. 588; Sturgeon v. Hampton, 88 Mo. 212. Notice by publication was unknown to the common law and he who would acquire property or divest rights must bring himself clearly within its provisions. Leach v. Cargill, 60 Mo. 316. (4) The filing on February 16, 1888, by Swan of the bill of review did not obviate the necessity of notice of the filing of commissioners' report. When the bill of review was filed this suit was not pending. If no legal notice of the filing of the report of the commissioners had been given by appellant on February 16, 1888, the appearance of respondent in that suit for any other purpose would not cure the defect so as to give the court jurisdiction over the subject-matter and the parties which had not before attached by reason of lack of jurisdiction prior to that time. Hill v. Beckwith, 102 Mo. 462, 463. In the case of Swan v. Railroad, supra, the court of appeals held that no notice had been served on respondent and that he thereafter had the right to file his exceptions. A decision on this point was necessarily involved in the record of that case and as to appellant is res adjudicata. Union Railroad v. Trabus, 59 Mo. 335; Kane v. McCown, 55 Mo. 199.
On the eighth day of June, 1887, plaintiff commenced a proceeding for the condemnation of a right of way for its railway through the land of defendant, situate in Carroll county. The petition was filed before the judge of the circuit court, and an order was made that defendant, who was a nonresident of the state, be notified by publication that commissioners would be appointed on the first day of July thereafter. The order was published for three weeks in the Carroll County Record, a newspaper published in said county, and was unobjectionable in form and substance. On the day named in the notice, the defendant failing to appear, the judge of the court appointed three commissioners to assess the damages defendant would incur by reason of the appropriation of this land. The commissioners made and filed their report, July 6, 1887, awarding to defendant $ 750 damages and the same was paid to the clerk of the court for defendant. After filing the report the clerk of the circuit court of Carroll county notified defendant thereof by posting in his office the following notice, after giving the style of the proceeding:
The notice was signed by said clerk officially and was posted on the twelfth day of July, 1887.
On the twenty-second day of July following, and during a term of the court, no exceptions having been filed, the report of the commissioners was approved, and a judgment entered condemning the land sought to be appropriated. On the seventeenth of February, 1888, defendant filed a petition for review against plaintiff, charging that the judgment in the condemnation proceeding was by default and upon constructive notice by publication, and asking that the same be set aside and that he be allowed to make a defense. To this petition the railway company demurred on the ground that it did not state facts sufficient to entitle him to the relief sought. The demurrer was sustained and the defendant appealed to the Kansas City court of appeals, where the judgment on the demurrer was affirmed. 38 Mo.App. 588.
Afterwards, in March, 1890, defendant Swan filed, in said condemnation pleadings, a motion to set aside the judgment therein rendered at the July term upon the ground that "the said judgment confirming said report was rendered without service of notice upon the defendant." This motion was sustained on July 31, 1890, and defendant was given leave to file exceptions to the report of the commissioners, which was done on the same day. The plaintiff railway company moved to strike out the exceptions and the motion was overruled. On the request of defendant the court submitted to a jury the question as to the damages to which he was entitled for the appropriation of his land, which, after hearing the evidence, returned a verdict for $ 1,000, for which amount judgment was rendered and plaintiff appealed to this court.
I. Article 6 of chapter 42, Revised Statutes, 1889, provides the proceedings under which land may be appropriated for the use of railroad companies. Under this article jurisdiction of a nonresident of the state, the appropriation of whose land is desired, may be obtained by publication of a notice in a newspaper of the county in which the proceedings are pending. Filing the petition and giving the requisite notice gives the court, or judge in vacation, jurisdiction over the person and subject-matter of the action. Sections 2734, 2735. After jurisdiction has been thus acquired the proceeding becomes a pending judicial proceeding which may be prosecuted to a final determination, in the manner directed by the statute. Union Depot Co. v. Frederick, 117 Mo. 138, 21 S.W. 1118; Leonard v. Sparks, 117 Mo. 103, 22 S.W. 899.
By section 2738 it is provided that upon filing the report of the commissioner, "the clerk of the court wherein the same is filed shall duly notify the party whose property is affected by the filing thereof." The manner of giving the notice is not pointed out by this special statute and a personal service is required unless we can look to the general code of civil procedure for a substituted service. Doyle v. Railroad, 113 Mo. 280; Wade on Notice, secs. 1134, 1137, 1138.
It is quite evident, we think, from the insufficiency of this special statute to meet and provide for all questions that may arise in condemnation proceedings, and to protect and enforce the rights of the parties thereto, that it was only intended to supplement...
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