Duenke v. St. Louis County
| Decision Date | 12 July 1948 |
| Docket Number | 40459 |
| Parties | Milton Duenke and Elmer E. Vorhof, Plaintiffs-Appellants, v. The County of St. Louis, Missouri, Luman F. Matthews, Alvin V. Bartelsmeyer and Arthur W. Schmid, Judges of the County Court of St. Louis County, Missouri, Defendants-Respondents, Rudolph W. Erting et al., Intervenors-Respondents |
| Court | Missouri Supreme Court |
Motion for Rehearing to Modify Opinion or to Transfer to Banc Overruled September 13, 1948.
Appeal from Circuit Court of St. Louis County; Hon. Amandus Brackman, Judge.
Affirmed.
John A Nolan and Watkins & Erbs for appellants.
(1) Petition to vacate was properly brought, proper notice was given, no remonstrance or objection was filed before the county court ruled on the petition to vacate, and all jurisdictional facts appear on the face of the record. Sec 7320, R.S. 1939; Evans v. Andres, 42 S.W.2d 32; Platte County v. Locke, 242 S.W. 666. (2) The County Court of St. Louis County, under Sec. 7320, R.S. 1939, was vested with power to surrender the title to Gladys Avenue theretofore vested in the county. In the exercise of that power, it acted in a purely administrative capacity, and not in a judicial capacity. St. L., I.M. & S. Ry. Co. v. St Louis, 92 Mo. 160; Aldridge v. Spears, 101 Mo. 400; State ex rel. v. Kennedy, 207 S.W. 71; Platte County v. Locke, 242 S.W. 666. (3) Section 7320, R.S. 1939, clothed the county court with power to do only one thing -- it could grant the petition and order the road vacated; or it could deny the petition. The exercise of either of the alternative powers by the court exhausted all further jurisdiction of the court over the subject matter. It could not thereafter assume to exercise further jurisdiction by attempting to set aside its previous action. St. L., I.M. & S. Ry. Co. v. St. Louis, 92 Mo. 160; Henry v. Cracraft, 168 S.W.2d 953; State ex rel. v. Johnson, 138 Mo.App. 306.
Kerth & Schreiber for Intervenors Rudolph W. Erting et al., and Erwin F. Vetter and Herman Barker for St. Louis County et al., respondents.
(1) The County Court of St. Louis County, Missouri, at the November Term, 1940 of said court was a court of record and stands on same footing as courts of general jurisdiction. Art. 6, Sec. 36, Constitution of Missouri of 1875; Ussery v. Haynes, 344 Mo. 530, 127 S.W.2d 410; State v. Fulton, 152 Mo.App. 345, 133 S.W. 95. (2) Under the common law a court of record has inherent power to set aside its own judgments during the term of court at which they were entered. Boegemann v. Bracey, 315 Mo. 437, 285 S.W. 992; State ex rel. Conant v. Trimble, 277 S.W. 916; In re Henry County Mutual Burial Assn., 77 S.W.2d 124; State ex rel. Marrs v. Wessell, 237 Mo. 593, 141 S.W. 883. (3) The order of the County Court of St. Louis County, Missouri, of November 15, 1940 vacating a part of Gladys Avenue is a judgment over which said court had control during the same term of court at which said order was made. State ex rel. Crow v. Fleming, 44 S.W. 758; In re City of Berkley, 155 S.W.2d 138; State v. Caldwell, 276 S.W. 631; State v. Chocklee, 237 Mo. 460, 141 S.W. 615; State ex rel. Verble v. Haupt, 181 Mo.App. 18, 163 S.W. 532; In the Matter of Saline County Subscription, 45 Mo. 52, 100 Am. Dec. 337.
The plaintiffs below appeal from a decree of the circuit court of St. Louis County dismissing their petition and finding in favor of the respondent defendants and some 72 intervenors, in a suit to quiet the title to a strip of land dimensioned 40 feet by 126 feet 4 inches, in or adjacent to the north side of Lot 40, Block 5, West Walnut Manor, an unincorporated subdivision of St. Louis County, recorded in plat book 10, pages 440-441, Recorder's Office. Whether the plaintiffs were entitled to prevail depends on whether the vacation of a public but unopened street called Gladys Avenue (platted to occupy the same space) was legally rescinded by the county court of St. Louis County in 1940. That is the only question for decision. But while the instant litigation covers only the small tract aforesaid, it will determine the legality of the street vacation for a distance of over 986 feet, affecting other lots.
The plat of the subdivision shows Gladys Avenue, 40 feet wide, extending east by south along the northerly side thereof from Jennings Station road to the city limits of St. Louis, and bounded on the other (north) side by the right of way of the Wabash Railway Company. The avenue was not opened as a thoroughfare, and some industrial establishments were located therealong. On November 4, 1940, the abutting property owners on both sides of the avenue, as far east as West Hodiamont Avenue, filed a petition in the county court praying the vacation thereof for that distance. Among these petitioners was a Fix Fuel & Material Company. On November 15 the county court entered an order accordingly, which was spread on its own records and in the recorder's office (book 1720, p. 530). There is no claimed irregularity in these vacation proceedings, which were had under Sec. 7320, R.S. 1939-Mo., R.S.A. About six weeks later, on January 31, 1941, during the same term of the county court, the court entered the following order:
No appeal was taken from either the foregoing vacation order, or the rescinding order just quoted. However, it further appears that on the same day (January 31) the latter order was entered, a petition was filed in the county court by a Mr. Deck, and other abutting property owners, to deny the vacation of the whole or any part of Gladys Avenue (a broader subject matter than that covered by the Fix Fuel petition). On the same day the county court ordered this Deck petition received and filed, and continued the cause to February 10. On that day the court ordered the cause continued generally.
On March 14, 1941, a petition was filed by certain citizens (it does not say property owners) asking the county court to accept Gladys Avenue as a county road throughout its whole length. This petition also was ordered received, filed and referred to the county highway engineer -- who made a report, the contents of which are not shown. But there the record stops. There is no showing that the county court ever took action on these dissenting and "accepting" petitions.
Most of the appellants' evidence consists of the foregoing record recitals, but one witness for them, Mr. C. W. Detjen, attorney for the Fix Fuel & Material Company, a signer of the vacating petition, testified that he was in the county court room on some other business on the morning of January 31, 1941, the date when the county court's vacation order of November 15, 1940 was rescinded. He stated that Judge Mueller, one of the county judges, told him "there was quite a lot of opposition to the fact that this street had been vacated;" and declared, "'I think we may have to set that aside.'" Mr. Detjen said he told the judge he doubted the court's authority to do it, and that if such a step was contemplated he would like to have notice of it; and the judge promised he would be heard. A great number of people were in the court room, but the court appeared to be in recess and Mr. Detjen left.
The next day, February 1, the clerk of the court wrote him a letter advising him there would be a hearing on the vacation of Gladys Avenue on February 10. He appeared on that date and the court announced to the audience that "the matter they were concerned with already had been taken care of, and that they (the court?) would receive the petition and file it, and it would be filed or held in the court and continued . . ." The witness said he did not know the order of January 31 rescinding the vacation order of November 15 had already been made. But it should be remembered the record shows the "Deck" petition, supra, asking the court to deny the vacation of the whole or any part of the avenue, had been filed and received on January 31, the same day the vacating order was rescinded, and the cause was continued thereon to February 10. Judge Mueller may have had this petition in mind in talking to Mr. Detjen.
Appellants do not contend the filing of this Deck petition kept the proceeding open and prevented the recision of the vacating order from being a final determination of the issue. Their legal contentions are: (1) that the county court acted in a purely administrative, and not in a judicial capacity; (2) that it had power to do only one thing -- namely, either to grant or deny the vacating petition; (3) and when it had ordered the vacation its power was spent, and it could not thereafter assume to exercise further authority by rescinding the vacating order. On the other hand, the respondents maintain: (1) that the county court was a constitutional court of record under Art. VI, Sec. 1, Const. Mo. 1875; (2) and that it acted judicially in entering the vacating order, and had power during the same term to rescind that order.
On their assignment that the county court acted purely administratively,...
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