Eaton v. Cnty. of St. Charles

• Decision Date: 31 October 1882
• Citation: 76 Mo. 492
• Parties: EATON et al., Appellants, v. THE COUNTY OF ST. CHARLES.
• Court: Missouri Supreme Court

76 Mo. 492

EATON et al., Appellants,

v.THE COUNTY OF ST. CHARLES.

Supreme Court of Missouri.

October Term, 1882.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

This was an action brought by appellants in the circuit court of the county of St. Charles for damages for the breach of a contract, entered into on the part of the respondent by commissioners appointed under the statute of this State, approved March 3rd, 1869, and the amendatory act approved February 15th, 1873, entitled “An act to provide for the reclamation of swamp and overflowed lands bordering on or situated near the river,” whereby appellants undertook to perform certain work, in accordance with plans and specifications under the directions of said commissioners, and necessary for the drainage of certain swamp lands in said county, for which respondent agreed to pay at certain specified rates. Among many other defenses to the action, respondent's answer averred that said commissioners never were lawfully appointed. As bearing upon this issue, the record brought from the St. Louis court of appeals showed that at the trial in the circuit court proof was made that a petition had been presented to the judges of the county court stating that the petitioners were a majority in interest in a certain body of swamp lands in said county, and praying for the reclamation and protection thereof, the appointment of commissioners and the taking of such further steps under such acts as were necessary to accomplish such object, but it did not show that any proof was made that notice of such application had been given. Such record being in the Supreme Court upon appeal, upon application by appellants, the court issued a writ of certiorari to the clerk of the circuit court requiring him to send up a correct transcript of the record, and in obedience to this writ a transcript was brought up, which showed that proof had been made of such notice upon the trial. On behalf of the respondent an affidavit was filed to the effect that in the trial court there had been no evidence of such notice.

Taylor & Pollard for appellants.

William A. Alexander for respondent.

I.

SHERWOOD, J.

A proceeding under the provisions of the swamp land act, is a special statutory proceeding, and notice under that act is a jurisdictional fact which must affirmatively appear, or else all steps subsequently taken will be coram non judice. In proceedings of the character mentioned the same rule holds in courts of general as in courts of...