City of Tarkio v. Clark

• Citation: 85 S.W. 329,186 Mo. 285
• Parties: CITY OF TARKIO v. CLARK.
• Decision Date: 15 February 1905
• Court: United States State Supreme Court of Missouri

85 S.W. 329

186 Mo. 285

CITY OF TARKIO v. CLARK.

Supreme Court of Missouri, Division No. 1.

February 15, 1905.

MUNICIPAL CORPORATIONS—EMINENT DOMAIN— CONDEMNATION OF LAND FOR STREET—PROCEDURE —ASSESSMENT OF COMPENSATION—JURY —QUALIFICATIONS—RECORD—SUFFICIENCY.

1. A constitutional point must be squarely raised in the lower court, the ruling in that court properly challenged, and exceptions saved, and preserved in the bill of exceptions, or else such constitutional point must appear in the record proper, in order to give the Supreme Court jurisdiction of an appeal.

2. A motion to quash proceedings for the condemnation of property is not a part of the record on appeal unless preserved in the bill of exceptions.

3. The Supreme Court can consider evidence only when it is contained in a bill of exceptions, and an abstract containing the evidence is subject to a motion to strike out.

4. Jurisdictional questions will be considered, though not presented by the briefs.

5. The title to real estate is involved in proceedings by a city to condemn land for a street, and hence the Supreme Court has jurisdiction of an appeal in such proceedings.

6. Under Rev. St. 1899, § 5979, providing that fourth-class cities may enact ordinances to open and improve streets; section 5990, requiring owners of property condemned for public use to be compensated; and section 5993, prescribing the mode for determining what compensation shall be paid for property taken for public use, and requiring the city authorities to define by

ordinance the limits within which private property is deemed benefited by any change or enlargement of the street—a petition of citizens is not necessary in order to justify the exercise of the right of eminent domain for the purpose of extending a street.

7. An ordinance, and not a resolution, is the proper initial step for the exercise of the power of eminent domain.

8. Under Rev. St. 1899, § 5993, providing that in condemnation proceedings for the taking of private property for street purposes the compensation to be awarded shall be determined by five disinterested freeholders appointed by the mayor, a recital in the record that the jury so appointed were disinterested freeholders is necessary to the validity of the proceedings.

9. The requirement of Rev. St. 1899, § 5993, that five days' notice shall be given of the time and place of hearing evidence as to the amount of damages to be awarded on condemnation of land for street or other public use, is mandatory, and the record of the proceedings must show upon its face that such notice was given, or the proceedings are invalid.

10. Under Rev. St. 1899, § 5993, requiring that in proceedings to condemn land for street or other public use the city authorities shall, before the appointment of the jury to determine the amount of compensation to be awarded, define by ordinance the limits within which private property is deemed benefited by the proposed improvement, the mayor has no jurisdiction to appoint a jury to assess damages before an ordinance is passed defining the benefit district.

11. Where, in the record of proceedings to condemn land for the extension of a street, nothing appears by which the length or termini of the proposed extension can be determined, and the land proposed to be taken is not defined by metes, bounds, calls, maps, plats, or documents, the proceedings are void for uncertainty.

Appeal from Circuit Court, Atchison County; Gallatin Craig, Judge.

Condemnation proceedings by the city of Tarkio, in which I. V. Clark filed a motion to dismiss the proceedings, and from a judgment rendered against him after the overruling of the motion he appeals. Reversed.

Hunt & Bailey, for appellant. Wm. R. Littell, for respondent.

LAMM, J.

Respondent, a city of the fourth class, seeks by condemnation proceedings under the exercise of the right of eminent domain to extend one of its thoroughfares (First street) by virtue of sections 5990 and 5993, Rev. St. Mo. 1899. Appellant Clark, owning land taken by the proceedings, appealed to the circuit court of Atchison county from the award of the mayor's jury, and, appearing for that purpose, filed a motion bristling with points to quash and dismiss the proceedings, raising thereby, among other questions, the constitutionality of said section 5993. Unsuccessful in his motion, he withdrew from the new inquisition of damages in that court, stood mute, and, when judgment de novo went against him, filed his unavailing motion for a new trial, and appealed here without a bill of exceptions. In this court appellant presses his constitutional point, and furthermore insists that the court below committed error in overruling his motion to quash and dismiss.

At the threshold of the case two preliminary questions confront us: First, is the constitutional point duly presented? and, second, in the absence of a bill of exceptions, can we look into the motion to quash and dismiss, or consider the error, if any, in overruling it? Of these seriatim.

A constitutional point is no such magical "open sesame" or shibboleth as that its bare mention in a brief gives this court jurisdiction of an appeal. A constitutional point must be squarely raised below, the ruling of the trial court properly challenged thereon, exception saved, and the exception preserved in the only known repository for exceptions, to wit, a bill of exceptions, or else such constitutional point must appear imbedded in the record proper, before it can get here for consideration. State ex rel. v. Smith et al., 176 Mo. 44, 75 S. W. 468, and cases cited; Ash v. Independence. 169 Mo. 77, 66 S. W. 888. The reasons underlying this rule of practice are too manifold and too manifest either to be ignored or to be threshed over and reformulated.

Was the motion to quash the proceedings and dismiss a part of the record proper, so that, in spite of the absence of a bill of exceptions, it comes before us? We think not. The learning of the case law is against the proposition, and if litigants, lightly indulging in the daring of mere innovation at the expense of experience and discretion, choose to travel extra viam instead of safely keeping within the main-traveled roads of appellate practice, long established and well marked out, they take the chance of finding themselves out of court, instead of in, at the end of their wandering. Over and over again it has been held that the whole brood of motions interlocutory in their character, motions for a new trial and in arrest, motions to make more certain, motions to strike out, to set aside a nonsuit, to dismiss, for judgment on the pleadings, to quash executions, to quash indictments, and other motions of that ilk and kidney, become a part of the record only by being preserved in a bill of exceptions. Ryan v. Growney, 125 Mo. 474, 28 S. W. 189, 755; State v. Hicks, 160 Mo. 468, 61 S. W. 193; Nickerson v. Peery, 163 Mo. 77, 63 S. W. 381; Smith v. Baer, 166 Mo. 392, 66 S. W. 166; Nishnabotna Drainage Dist. v. Campbell, 154 Mo. 151, 55 S. W. 276; Sternberg v. Levy, 159 Mo. 617, 60 S. W. 1114, 53 L. R. A. 438; State v. Wilhoit, 142 Mo. 619, 44 S. W. 718; Force v. Patton, 149 Mo., loc. cit. 448, 50 S. W. 906. There is, indeed, an exception to the general rule, and it has accordingly been held that motions which, when served, are in effect due process of law, or original and independent proceedings, are considered as pleadings, and part of the record proper. Wilson v. R. R. Co., 108 Mo., loc. cit. 602, 18 S. W. 286, 32 Am. St. Rep. 624; State ex rel. v. Court of Appeals, 87 Mo. 374; Ryan v. Growney, 125 Mo. 474, 28 S. W. 189, 755. There is the still further exception (if exception it be called) that a demurrer, stood on, is a pleading, which, with the judgment thereon, becomes a part of the record proper. State ex rel. v. Jones, 155 Mo. 570, 56 S. W. 307; Hannah v. Hannah, 109 Mo., loc. cit. 240, 19 S. W. 87. But appellant's motion to quash the proceedings and dismiss does not stand on the same footing as a demurrer, or a motion which is an original and independent proceeding, or which fills the office of due process of law. We are disinclined to carve out a new exception to the general rule, and thereby confuse the practice, and therefore rule that the constitutional question and the motion to quash and dismiss the proceedings are not before us.

Respondent brings here by way of an abstract all the evidence introduced in the circuit court. Appellant files a motion to strike it out. The motion is sustained. Evidence can only reach us through a bill of exceptions.

The constitutional question being out of the way, and the amount of the money judgment for damages being trivial, the question presents itself, has this court jurisdiction of this appeal? Such question is not presented by the briefs, but jurisdictional questions obtrude themselves at any step or stage of a suit, and will be considered sua sponte. It has been held that the title to real estate is involved in condemnation proceedings instituted by...