City of Boonville v. Ormrod's Adm'r

• Decision Date: 31 January 1858
• Citation: 26 Mo. 193
• Parties: CITY OF BOONVILLE, Respondent, v. ORMROD'S ADMINISTRATOR, Appellant.
• Court: Missouri Supreme Court

26 Mo. 193

CITY OF BOONVILLE, Respondent,

v.ORMROD'S ADMINISTRATOR, Appellant.

Supreme Court of Missouri.

January Term, 1858.

1.Where proceedings are instituted to condemn and appropriate private property to public uses, notice thereof should be given to the owner of such property.

2.Notice of such proceeding given to an administrator will not be notice to the heirs; notice must be given to the heirs.

3.The city of Boonville instituted proceedings under its charter to condemn real estate belonging to an intestate's estate, and notice of such proceedings was given to the administrator and not to the heirs; held, that the proceedings were invalid for want of notice to the heirs.

Appeal from Cooper Circuit Court.

This was a proceeding instituted in behalf of the city of Boonville under its charter for the purpose of opening and extending Chestnut street in said city over real estate belonging to the heirs of Joseph Ormrod, deceased.A summons was issued for a jury of freeholders to assess the damages and benefits.Notice of the proceeding was given to John M. McCutchen, administrator of said Joseph Ormrod, deceased.The jury viewed the premises, and assessed the sum of $200 as damages to the estate of Ormrod.The administrator appealed to the circuit court.The jury assessed the damages at $250.Judgment was rendered accordingly.The administrator moved the court to set aside the verdict and dismiss the proceeding, on the ground that the heirs of Ormrod had never received notice thereof.The court overruled the motion.

Douglass and Hayden, for appellant.

I. Ormrod's heirs and not his administrator were the parties interested in the land.Notice should have been given.The administrator was the only party notified; he was the only party that appealed, as appears from the entry on the mayor's docket.The recital in the appeal bond could not make the heirs parties.To condemn private property without giving the owners notice would be a gross abuse of the right of eminent domain.

Draffin and Hutcheson, for respondent.

I.The proceeding was conducted in strict conformity to the charter of the city of Boonville.(SeeSess. Acts, 1839, p. 297, § 13;Sess. Acts, 1847, p. 183.)The owners were parties to the proceeding.They made themselves such by taking an appeal to the circuit court.The administrator could not take the appeal because he could not make the necessary affidavit.The party must swear that he is injured by the judgment.The administrator had no interest in the land condemned.The owners took the appeal through the administrator as their agent.

SCOTT, Judge, delivered the opinion of the court.

This was a proceeding on the part of the plaintiff to condemn for public use lands belonging to the estate of Joseph Ormrod, deceased.Notice of the intention to take such steps was given to John M. McCutchen, administrator of Ormrod, but none was served on the heirs of the deceased.

In order to ascertain who are the parties to a legal proceeding we look in the record for those who have been served with notice or will appear and defend.The respondent seems to have been aware of the necessity of giving notice to those whose rights were to be affected, but, while acknowledging this necessity, gives the notice to one who is in nowise interested.It is not seen how McCutchen, as administrator, could be made a party to a proceeding affecting the rights of the...