City of Kansas v. Knotts

• Decision Date: 30 April 1883
• Citation: 78 Mo. 356
• Parties: THE CITY OF KANSAS v. KNOTTS et al., Appellants.
• Court: Missouri Supreme Court

78 Mo. 356

THE CITY OF KANSAS

v.KNOTTS et al., Appellants.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Jackson Circuit Court.--Trial before C. O. TICHENOR, ESQ., sitting as Special Judge.

AFFIRMED.

L. C. Slavens for appellants.

D. S. Twitchell for respondent.

MARTIN, C.

This was a proceeding by the City of Kansas to condemn private property for the opening and extension of Sixth street from Tracy avenue to Woodland avenue in said city. The proceeding was instituted in pursuance of ordinance No. 21,039 of the common council of said city, which was approved on the 7th day of June, 1881. The ordinance prescribes the boundaries within which the property was to be condemned, and declares that “all private property within said boundaries is hereby taken and condemned for public use, as an extension of said Sixth street, and just compensation therefor shall be assessed, collected and paid according to law.” The ordinance also prescribes the limits within which “private property shall be deemed benefited by reason of the proposed improvement, mentioned in the preceding section, and be assessed and charged to pay just compensation therefor.”

The cause was first tried before the mayor, then taken by appeal to the circuit court, where it appeared in division No. 2 of said court. Hon. F. M. Black, judge of division No. 2, was not only interested in the suit as owner of property lying within the limits of assessment, but he was a party to the record, his name being included in the original notice to the property owners subject to charge and assessment. There being no consent of the parties to a trial by His Honor Judge Black, the appellants requested him to send the case to division No. 1, presided over by Hon. Turner A. Gill, judge of that division. This request was refused by Judge Black for the reason that it appeared from the record of the cause that Judge Gill was also a party to said cause.

The parties having failed after this ruling to select a special judge, an election was held by the clerk, which resulted in the selection of C. O. Tichenor, Esq., an attorney of said court. The case was tried by the special judge so elected, and resulted in a complete condemnation of the property required for the extension of Sixth street, and a very general assessment of charges for benefits on account of the extension. It seems from the record that appellant was adjudged $1,500 damages for his property within the limits of condemnation, and $1,000 benefits to his property within the limits of assessment for benefits, which would leave him entitled to a balance of $500 on his money judgment. In his appeal to this court, he presents two questions, which were raised by his motion for a new trial. They are as follows: 1st, That the cause should have been sent to the other division of the court; 2nd, That there was no judicial determination whether the property attempted to be taken was really for a public use.

1. COURTS: judge a party to the record.

I. We do not think any error was committed by Judge Black in refusing the request of the appellant to send the case to Judge Gill, under the circumstances disclosed in the record. The object of the request was, as we are informed by appellant, to afford the parties an opportunity to consent to Judge Gill trying the cause. By the 11th section of the act reorganizing the 24th judicial circuit, it is provided that “no change of venue shall be allowed by said circuit court for any reason that may be alleged against the judge of the division to which the same is assigned, but if any such reason exist the cause shall be transferred to the division held by the other judge; but if reason exist against both the judges of said court, then such change may be allowed to the circuit court of some contiguous county, unless otherwise disposed of according to law.” Sess. Acts 1879, § 82. The appellant claims that he was deprived of the legal right to a possible chance in Judge Gill trying the case. He admits this right depended upon the consent of the parties if Judge Gill was interested in the suit, and that he could not have proceeded without such consent. Now it is evident that such consent was substantially withheld by the parties. The city withheld it when it accepted without objection the ruling of Judge Black refusing to transfer the case and permitting the election of a special judge. And Judge Black, who was a party to the case, must have withheld his consent when he entered his ruling.

2. ___.

But there is an obvious reason underlying this matter which in my judgment rendered it legally improper, as against public policy, for Judge Gill to try the case even with the consent of the parties. According to the record Judge Gill was something more than merely interested in the suit; he was a party defendant, legally served with process, and the record discloses two assessments against him for which execution is ordered. I am unable to perceive how a judge, who is a party to a cause, can properly discharge the functions of a judge in...