Faris v. City of Caruthersville

• Decision Date: 16 April 1942
• Docket Number: 37864
• Parties: John G. Faris, G. V. Faris and Charles Faris, Appellants, v. City of Caruthersville, a Municipal Corporation
• Court: Missouri Supreme Court

162 S.W.2d 237

349 Mo. 454

John G. Faris, G. V. Faris and Charles Faris, Appellants, v. City of Caruthersville, a Municipal Corporation

No. 37864

Supreme Court of Missouri

April 16, 1942

Rehearing Denied June 3, 1942.

Appeal from Pemiscot Circuit Court; Hon. Louis H. Schult Judge.

Affirmed.

Corbett & Peal for appellants.

(1) The Springfield Court of Appeals is an appellate and not a trial court. It had jurisdiction of only so much of the case as was brought before it by the appeal. It did not have jurisdiction to dispose of the whole case and direct a final judgment on the merits, on a mere finding that the petition of the city of Caruthersville stated a cause of action, and its order judgment and mandate directing the trial court to render final judgment on the merits was and is void. State ex rel. v. Smith, 188 Mo. 167; State ex rel. v. Smith, 176 Mo. 90. (2) And if the judgment of the court of appeals directing a final judgment on the merits was void, because the merits were not before the court of appeals for adjudication, then the judgment of the circuit court, following the mandate of the court of appeals, was based upon a void judgment and is also void. Ralph et al. v. Annuity Realty Co., 28 S.W.2d 662. (3) A judgment pleaded in bar, being a nullity, furnishes no defense whatever to plaintiff's cause of action. Horn v. Mississippi River & B. T. Ry. Co., 88 Mo.App. 469; Hope v. Blair, 105 Mo. 85; Cloud v. Inhabitants of Pierce City, 86 Mo. 357. (4) No court, not even a court of general and original jurisdiction, has any power, jurisdiction or authority to pass on or render judgment on any matter or issue that is not properly before it, and if such a court renders judgment on such a matter or issue not properly before it for decision, the judgment is void. Cox v. Cox, 101 Mo. 168; Jenkins v. Morrow, 131 Mo.App. 288. A judgment pleaded in bar, being a nullity, furnishes no defense whatever to plaintiff's cause of action. Hope v. Blair, 105 Mo. 85; Cloud v. Inhabitants of Pierce City, 86 Mo. 357; Horn v. Mississippi River & B. T. Ry. Co., 88 Mo.App. 469.

Fred L. Henley and Ward & Reeves for respondent.

(1) The opinion and judgment of the Springfield Court of Appeals was right, but whether right or wrong, it was and is binding on the parties here as against the collateral attack now being made by the appellants. It is res adjudicata. State ex rel. v. Hughes, 148 S.W.2d 576; Hurt v. Edwards, 148 S.W.2d 542, 344 Mo. 24; State v. Ragland, 97 S.W.2d 113; Drainage District v. Ruddick, 64 S.W.2d 306; Smith v. Black, 231 Mo. 681; Hecker v. Bleish, 37 S.W.2d 444. (2) In a condemnation suit the only question on which either party was entitled to a jury trial was the question of damages, all other questions being questions of law. Railroad v. Pfau, 212 Mo. 398, l.c. 408; State ex rel. v. Bruce, 334 Mo. 312, 66 S.W.2d 847, l.c. 848. (3) It has been specifically held by this court that on the question of damages to be allowed in condemnation suits a jury may be waived. The judgment in this case as set out in our additional abstract of the record shows that a jury was waived. Drainage District v. Campbell, 154 Mo. 151. (4) The defendants in that case were not deprived of any constitutional rights under the due process clause under the holdings of the courts. Davidson v. Life Ins. Co., 151 Mo.App. 561; Canning & Baking Co. v. Evans, 238 Mo. 599. (5) The only constitutional provision providing for a trial of condemnation damages by a jury is Article XII, Section 4, which requires a trial by a jury when requested by either side, if an incorporated company is a party. Under that provision of the Constitution the courts hold that it is inapplicable to a municipal corporation. Kansas City v. Vineyard, 128 Mo. 75; In re: Independence, 128 Mo. 272; City of St. Louis v. Smith, 325 Mo. 471. (6) There is one other section of the Constitution with reference to trial by jury, and that is Article II, Section 28, which provides that the right of trial by jury as heretofore enjoyed shall remain inviolate. That apparently is the provision of the Constitution relied upon by appellants. But our courts have held that the right of a jury trial is limited to cases in which that right was given under the common law and does not exist in condemnation proceedings by a municipal corporation against individuals. City of St. Louis v. Smith, 325 Mo. 471; St. Joseph v. Geiwitz, 148 Mo. 210; Plankroad Co. v. Pickett, 25 Mo. 535. (7) The trial court, all parties appearing as shown by the record, took up for consideration the mandate of the Springfield Court of Appeals in the condemnation suit, and the defendants could then have raised the question if they deemed the court of appeals had entered a void judgment; but since the question was neither raised in the Court of Appeals after the filing of the opinion or in the circuit court when the enforcement of the mandate was being considered, the defendants in that case (plaintiffs here) are concluded and bound and the matters are now res adjudicata. Hecker v. Bleish, 327 Mo. 377; Hurt v. Edwards, 148 S.W.2d 542. (8) The defendant in this case filed with its answer a crossbill or counterclaim alleging its title, ownership and right of possession in the property in question and also pleaded that the plaintiffs were in possession and claiming title and had refused to deliver possession upon demand to the defendant. Judgment went for the defendant, City of Caruthersville, on its crossbill or counterclaim, and no question of the correctness of that part of the judgment is made here by appellants, provided the judgment of the trial court against the plaintiffs on their petition was proper. However, the law authorizes such pleading and judgment on behalf of respondent in this case. Clark Real Estate Co. v. Old Trails Inv. Co., 335 Mo. 1237; Matthews v. Karnes, 320 Mo. 962; Matthews v. Citizens Bank of Senath, 329 Mo. 556.

OPINION

Clark, J.

In a suit to quiet title to certain land, judgment was rendered for the defendant, City of Caruthersville, by the circuit court of Pemiscot county, adjudging the title to be in the city as prayed in its crossbill, and plaintiffs have appealed.

We cull the following facts from the statement contained in appellants' brief. The land was formerly owned in fee simple by the appellants. It is situate within three miles of said city and adjoins Little Prairie Cemetery. In 1940 a suit was filed in said circuit court to condemn the land for public cemetery purposes as an enlargement of Little Prairie Cemetery. The plaintiffs in that suit were the City of Caruthersville and six individuals who were described in the petition "as constituting more than five persons of the public in interest who reside near and within the vicinity of Little Prairie Cemetery, a public cemetery and burial ground of the dead, owned, controlled and maintained by the City of Caruthersville; and that the individual plaintiffs compose and constitute the board of commissioners of Little Prairie Cemetery." A demurrer was filed to that petition by the defendants, now the present appellants, one of the grounds of demurrer being that there was a defect of parties plaintiff. The trial court sustained the demurrer as to the city and overruled it as to the individual plaintiffs. Then the court appointed commissioners who in due time filed their report as to the damages due defendants for the appropriation of their land. The defendants filed exceptions to the report and, a jury being waived, the matter was heard by the court, the report confirmed, the money ordered paid into court for defendants, and judgment rendered divesting title from defendants and vesting it in the individual plaintiffs for public cemetery purposes and the enlargement of Little Prairie Cemetery.

The city paid into court the amount assessed by the commissioners and approved by the court. The defendants, present appellants, have never accepted the money and still retain possession of the land. The city appealed from the judgment rendered pursuant to the court's order sustaining the demurrer to the petition as to the city, and the defendants appealed from the judgment condemning their land. Both appeals went to the Springfield Court of Appeals in a joint abstract and were decided by that court in one opinion. [City of Caruthersville v. Faris (Mo. App.), 146 S.W.2d 80.]

The court of appeals, after a thorough review of the Missouri statutes relating to cemeteries, concluded that Little Prairie Cemetery belongs to that class of cemeteries the public easement to which is vested in a city of the third class, in this instance in the City of Caruthersville; that the city had the power to enlarge such cemetery, when necessary, by condemnation of adjoining land; that the cemetery is not of that type which may be acquired or enlarged by five or more individuals representing the public. The court held that the trial court had erred in sustaining the demurrer to the petition, as to the city, and had also erred in overruling the demurrer as to the individual plaintiffs. Then the court remanded the case with directions to sustain the demurrer as to the individuals, to overrule it as to the city, and to divest the title out of the defendants and to vest it in the city for cemetery purposes only. The concluding paragraph of the opinion is as follows:

"As the individual plaintiffs acted only as figure-heads and as representatives of the city, and as the money deposited in the court was the city's (this was admitted on the oral argument), the individual plaintiffs were merely improper parties, and the rights of the defendants were not prejudiced. Since this suit is a friendly one to determine the right of the city to condemn the defendants' property, the costs of...