Cunningham v. Pacific R.R.

• Decision Date: 31 October 1875
• Citation: 61 Mo. 33
• Parties: HENRY CUNNINGHAM AND LAURA CUNNINGHAM, Respondents, v. THE PACIFIC RAILROAD, Appellant.
• Court: Missouri Supreme Court

61 Mo. 33

HENRY CUNNINGHAM AND LAURA CUNNINGHAM, Respondents,

v.THE PACIFIC RAILROAD, Appellant.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Jackson County Circuit Court.

John N. Litton, for Appellant.

I. The record of the justice was a nullity, because it failed to show affirmatively, upon its face, that an attempt to agree upon the damages done, was made before the appointment of the appraisers. This is a condition precedent to the authority of the justice to make the appointment, and to the authority of the appraisers to act. It is a jurisdictional fact. (1 R. C. 1855, 421, § 22; 1 Wagn. Stat., 302, § 11; Ells vs. Pacific Railroad, 51 Mo., 203; Leslie vs. City of St. Louis, 47 Mo., 474; Anderson vs. City of St. Louis, 47 Mo., 485; Lind vs. Clemens, 44 Mo., 540; United States vs. Reed, 56 Mo., 565; 3 Johns. Cas., 108; 1 Redf. Railw., 239, §§ 65 et seq; Cool. Const. Lim.; Hansburger vs. Pacific Railroad, 43 Mo., 196; State vs. Metzger, 26 Mo., 65; State vs. Woodson, 41 Mo., 227; Schell vs. Leland, 45 Mo., 289; Lacey vs. Williams, 27 Mo., 282; Bush vs. Schneider, 27 Mo., 103; McCloon vs. Beattie, 46 Mo., 391; Dillard vs. St. Louis, K. C. & N. R. R. Co., 53 Mo., 74; Thatcher vs. Powell, 6 Wheat., 119; Comm. Ct. of Talladega vs. Thompson, 18 Ala., 694; 16 Ind., 310.)

F. M. Black, for Respondents.

I. The instructions, and especially those which were given for defendant, require all the jurisdictional facts to be shown by the plaintiff, aside of the recitals of the justice and award.

II. By the statute defendant had the right of appeal from the award made by the Commissioners and could have reviewed the whole matter in the Circuit Court, but having failed to do so, none of the matters raised by the record are subject of review.

SHERWOOD, Judge, delivered the opinion of the court.

Action on an award, made in 1864, by three householders, appointed by a justice of the peace, under the provisions of § 22, ch. 39, 1 R. C., 1855, whereby it is provided that if the owner of land and the railroad company “““ cannot agree” as to the damages done in consequence of taking materials from the land in constructing the road, those damages shall be ascertained by “three impartial and disinterested householders,” but that the applicant for such an appointment of commissioners must show to the justice that ten days notice had been given to the other party prior to making the application, and no award is to be obligatory without such notice.

It will be readily seen that the method of procedure, as above pointed out, is a summary one. The well settled rule in such cases is, that the statute which gives a remedy of this character must be strictly pursued. And it is equally certain that compliance with every essential pre-requisite of the statute, conferring the authority, must affirmatively appear on the face of the proceedings had, or else they will be possessed of no validity whatever. And the same doctrine obtains, and with equal strictness, in courts of general, as in courts of inferior or limited jurisdiction. And the reason assigned for the rigidity of the rule is, that these summary and statutory proceedings are in derogation of common law and common right, and, therefore, should be confined within the precise boundaries laid down and marked out by the statute, which gives origin to such extraordinary remedies.

In the case before us the record of the justice fails to recite that the parties could not agree. This is a fatal defect; for it is only upon such failure that the justice has any authority to act. By reason of this, the failure of the parties to agree becomes a jurisdictional fact, which, of necessity, must appear on the face of the proceedings in order for them to wear the hue and complexion of legal validity.

The statute under consideration which, at the instance of an individual, compels a railroad company to pay as damages an amount assessed by three men, in whose selection it has had no choice, is clearly not distinguishable in point of principle from one which permits such company to condemn in a manner equally summary the land of a private person. And yet, under a statute of the latter description, where it was provided that proceedings for the condemnation of land for the right of way might be instituted, upon the refusal of the owner to relinquish the same, it was held that, although the proceedings were had in the Circuit Court, the refusal of the owner to relinquish was a jurisdictional fact, in the absence of the recital of which, the judgment of condemnation was worthless. (Ells vs. Pacific Railroad, 51 Mo., 200; Lind vs. Clemens, 44...