City of St. Louis v. Lawton

• Decision Date: 15 June 1905
• Parties: CITY OF ST. LOUIS v. LAWTON et al.
• Court: Missouri Supreme Court

88 S.W. 80

189 Mo. 80

CITY OF ST. LOUIS v. LAWTON et al.

Supreme Court of Missouri, Division No. 1.

June 15, 1905.

1. BILL OF EXCEPTIONS—TIME FOR FILING.

Where no bill of exceptions was filed during the term, or within an extension of time then granted, the exceptant could not incorporate the proceedings in a bill filed at a subsequent term.

2. NEW TRIAL—MOTION—SCOPE—REVIEW.

Where, at one term, an order was made setting aside a report of commissioners on damages in condemnation proceedings and appointing a new commission to inquire into the damage, and no exception was taken to such action, on the report of the new commission at a subsequent term, the party dissatisfied therewith could not acquire a right to have the validity of the appointment of the commission reviewed by making the motion for new trial include the proceedings of the prior term.

3. EMINENT DOMAIN—MUNICIPAL CORPORATIONS— PROCEEDINGS—DISMISSAL.

Under St. Louis City Charter, art. 6, § 7 et seq., providing that, on a petition to condemn lands and appointment of a commission to assess damages, opportunity shall be given to report to the municipal assembly "for its information and approval," the disapproval of the report does not of itself operate as a dismissal of the proceedings.

4. SAME—DAMAGES—TRIAL BY JURY.

Under St. Louis City Charter, art. 6, § 7, providing that, on exceptions to the report of commissioners assessing damages in proceedings to condemn land, the court may make such order as justice may require, and may order a new appraisement, an order making changes in the benefit assessment was not an infringement on the right, given by Const. art. 2, § 21, to have the damages assessed by a jury or commission of freeholders.

Appeal from St. Louis Circuit Court; Selden P. Spencer, Judge.

Proceedings by the city of St. Louis against Joseph Lawton and others. From a judgment assessing damages and benefits to defendants in the condemnation of land, one of them appeals. Affirmed.

Sears Lehmann and Boyle, Priest & Lehmann, for appellant. Chas. W. Bates and C. R. Skinker, for respondent.

VALLIANT, J.

This is a proceeding to open a street, condemning land to be taken for that purpose and assessing benefits. The St. Louis Fair Association is one of the property owners whose land is taken and is the appellant. The petition was filed April 24, 1897. Commissioners were appointed, who filed their report October 24, 1899. Time was given to report to municipal assembly, and exceptions to the commissioners' report were filed. On April 30, 1900, during the April term, it is said in appellant's abstract that the city counselor filed a statement showing that the municipal assembly had disapproved of the commissioners' report, and that on the same day the court made an order setting aside the report and appointing a new set of commissioners to make a new assessment of damages and benefits. The order contains no finding or recital of facts as its base, but simply sets aside the report and appoints a new commission. At the October term, 1900, the second set of commissioners filed their report, awarding appellant $1 damages for the land taken, and assessed against it amounts aggregating $4,261.65, for benefits, and against the city as for benefit to the general public $100, to which report appellant filed exceptions: First, that the damages assessed in appellant's favor were inadequate; second, the benefit district should have been extended further; third, the benefits assessed against the city were too small; fourth, that the failure of the municipal assembly to approve the report of the former commissioners operated as a withdrawal of the proceedings, and therefore this report is without warrant of law. The exceptions came on to be heard on evidence at the June term, 1901, when the court sustained the exceptions to the extent of reducing the aggregate assessment of the benefits against the appellant $1,200, and adding that sum to the assessment against the city, and, after so modifying the report, approved it, and rendered final judgment of condemnation of appellant's property accordingly. Appellant in due time filed a motion for a new trial, assigning three grounds: First, error in modifying report and entering judgment thereon; second, under the evidence the exceptions should have been sustained and the report set aside; third, admitting illegal evidence for the plaintiff and excluding legal evidence for the exceptor. The motion was overruled, and leave to file bill of exceptions on or before October 7th next was granted, which bill was filed in due time. On the trial the evidence for the exceptor tended to show that the amount of damages assessed was inadequate, and contra for the plaintiff, that the land proposed to be embraced in the street had in fact already been a public road many years.

1. The first and main proposition of appellant is that the disapproval by the municipal assembly of the report of the first set of commissioners was in effect the end of the suit. All that the court did thereafter was outside of its jurisdiction. The learned counsel on both sides of this controversy are agreed on the proposition that no action of the trial court is reviewable on appeal, unless it was presented to the trial court in a motion for a new trial, or a motion in arrest, or unless it appears on the face of the record proper. There was no motion in arrest, but appellant insists that the point was preserved in the motion for a new trial, and also that it is on the face of the record proper. The only b...