In re Big Tarkio Drainage District

• Decision Date: 24 March 1914
• Parties: In re BIG TARKIO DRAINAGE DISTRICT v. FRITZ VOLTMER, Appellant
• Court: Missouri Supreme Court

165 S.W. 338

256 Mo. 152

In re BIG TARKIO DRAINAGE DISTRICT v. FRITZ VOLTMER, Appellant

Supreme Court of Missouri, Second Division

March 24, 1914

Appeal from Holt Circuit Court. -- Hon. W. C. Ellison, Judge.

Reversed and remanded (with directions).

H. B Williams and Frank Petree for appellant.

(1) The appeal was not taken from the action of the Holt Circuit Court in overruling the exceptions to the report of the commissioners assessing benefits and damages to the appellants, in which the action of the court was interlocutory and not final. The appeal was taken from the judgment of the court approving the report of the commissioners. The finding of the court, overruling the exceptions of appellants, is shown in appellant's abstract. After the finding of the court, the appellants filed their motions for new trial and in arrest, which was overruled, and thereafter "judgment was rendered upon the finding confirming the commissioners' report, as modified by the court." This showing is sufficient. State ex rel. v. Broaddus, 216 Mo. 336; R. S. 1909 sec. 5518. In fact, the respondent admits that the decree was entered. The judgment affirming the commissioners' report assessing benefits and damages to the land within the district is the final act of the court in the disposition of all proceedings connected with the incorporation and organization of the district, and is the final and complete disposition of the case so far as the trial court is concerned. The abstract shows that the appeal was taken from this final judgment of the court confirming the commissioners' report. It is not necessary, in order that an appeal may lie from the action of the circuit court, that the right to appeal should be specifically given in the statute providing for the organization of this drainage district. The right of appeal, not being prohibited in the statute under which these proceedings are had, is given by the general statutes providing for appeals in civil cases. Section 2038, R. S. 1909; Railroad v. Lackland, 25 Mo. 515; King's Lake Drg. & Levee Dist. v Jamison, 176 Mo. 557; Railroad v. Brick Co., 85 Mo. 322; Little Tarkio Drg. Dist. v. Richardson, 237 Mo. 49; Railroad v. Little Tarkio Drg. Dist., 247 Mo. 86; Drainage District v. Tomlinson, 245 Mo. 1; Land & Stock Co. v. Miller, 170 Mo. 240; Drainage District v. Scott, 240 Mo. 31; Drainage District v. Turney, 235 Mo. 80; Drainage District v Railroad, 236 Mo. 94. Respondent, in its brief filed in support of its motion to dismiss appellants' appeal in this case, sets out the provisions of the Act of 1913, in which a limited right of appeal is given. That act can have no effect upon the appeal in this case, as the appeal as taken long before the act of 1913 was passed. The law that was in force at the time this appeal was taken, placed no limitation whatever upon the right of appeal, and contained no provision whatever in reference thereto. There being no limitation upon the right of appeal, the general law in regard to the right of appeal in civil cases applies. (2) (a) The proceeding for the assessment of benefits and damages to the lands in the Drainage District is a continuation of the proceedings for the incorporation of the Drainage District. Drainage District v. Richardson, 237 Mo. 64; Railroad v. Drainage District, 237 Mo. 98; Drainage District v. Tomlinson, 245 Mo. 1. (b) A court takes notice of the record in the pending case. It is not necessary to offer it in evidence. 7 Ency. of Ev. 999; State v. Ulrich, 110 Mo. 350; State v. Daugherty, 106 Mo. 182; State v. Jackson, 106 Mo. 174. Even in collateral proceedings in the same case, the judgments and orders in the principal proceeding are judicially noticed. 7 Ency. Ev. 1001; Ollesheimer v. Mfg. Co., 44 Mo.App. 172; Dinkins v. Woodenware Co., 99 Mo.App. 310; Spengler v. Kaufman, 43 Mo.App. 5. (c) Respondent in its petition asking for the appointment of commissioners, states that the district is a "Drainage District Corporation of Holt county, Missouri, duly created, organized and incorporated by Articles of Association, duly signed and filed, and by decree of the Circuit Court of Andrew county, Missouri." It is elementary law that when a party pleads a fact and it is not denied by the opposite party it stands admitted, and it is not necessary to offer proof of such fact. This proposition is so well established that it is not necessary to cite authorities. A plea to the jurisdiction, even when coupled with a plea to the merits, is permissible under the Missouri code, and the latter plea does not, as at common law, waive the former. Meyer v. Insurance Co., 184 Mo. 487; Johnson v. Detrick, 152 Mo. 243. The proceeding at bar is not a proceeding in personam, but is a proceeding in rem, to wit, a proceeding to subject the lands within the district to taxation for the purpose of raising money to pay the expenses of draining the land within the district, and also to condemn lands for right of way for ditches and dykes through the district. Being a proceeding in rem, consent cannot confer jurisdiction of the subject-matter, and the objection of the want of jurisdiction may be made at any time during the progress of the case, or even afterward, if the record discloses such want of jurisdiction. Meyer v. Insurance Co., 184 Mo. 487; Cable v. Duke, 208 Mo. 557. Jurisdiction over the subject-matter, or cause of action, must be conferred by law. It cannot be conferred by consent. Dodson v. Scroggs, 47 Mo. 287; Cones v. Ward, 47 Mo. 289; Abernathy v. Moore, 83 Mo. 69. Where the proceeding involves the res, that court which first takes possession of the property, retains possession and the jurisdiction. Carriage Co. v. Wells, 99 Mo.App. 641; Mfg. Co. v. Powell, 98 Mo.App. 530; Railroad v. Sweet, 103 Mo.App. 276.

W. H. Richards and John M. Williams for respondent.

(1) The circuit court is a court of general jurisdiction. "Jurisdiction will be presumed as to courts of general jurisdiction, unless the contrary appears of record. This presumption has greater force after lapse of time, and embraces jurisdiction not only of the cause or subject-matter of the action in which the judgment was rendered, but of the parties also. So it will be presumed that every step necessary to give jurisdiction has been taken, although this presumption may be rebutted by extrinsic evidence, as want of jurisdiction may be inquired into. Any acts or omissions affecting the validity of the proceedings must be affirmatively shown." 11 Cyc. 691, and cases cited; Griffin v. Franklin, 224 Mo. 667; Lower v. Coal & Mining Co., 142 Mo.App. 351; Yancy v. Jones, 153 Mo.App. 206. (2) An appellate court will take notice of such facts only as are properly included in the record. It is unnecessary to cite authorities in support of this proposition. (3) The proceedings leading up to the incorporation of the Big Tarkio Drainage District were a part of the record in that case and would have been properly included in an abstract of the record in an appeal from a decree of the court incorporating said district; but when the district was incorporated, clothed with all the powers conferred by law and, in the exercise of such powers proceeded to have benefits and damages assessed in carrying out the purpose of its creation, the application filed in court for the appointment of Commissioners to assess benefits and damages is the first step in the record proper in this case. What had preceded in the proceeding which resulted in a decree incorporating the district, and from which no appeal was taken, is no part of the record on this appeal and could not be unless offered as evidence and preserved by bill of exceptions. (4) By appearing generally and filing exceptions to the report of the Commissioners, raising issues of fact against the confirmation of said report and by introducing testimony in support of such exceptions, appellant thereby invoked the exercise of the jurisdiction of the court, waived the question of such jurisdiction and will not now, on appeal, be allowed to shift his position. Drainage District v. Richardson, 237 Mo. 49. (5) The appeal was taken from an order of the Holt Circuit Court, overruling certain exceptions to the report of commissioners appointed by said court to assess benefits and damages under the provisions of chapter 41, R. S. 1909. Section 5518 of said chapter directs the court to hear such exceptions in a summary manner, which was done in these cases, the report being amended in some particulars, and then approved. This order of approval, or confirmation, was interlocutory only, and was not a final judgment. No provision was made in this section or in said chapter for an appeal. "Appeals are purely statutory. No right of appeal existed at common law." Miller v. Transit Co., 216 Mo. 103; Drainage District v. Railroad, 216 Mo. 709; Ackerman v. Green, 201 Mo. 231. The statute provides that "all exceptions shall be heard by the court and determined in a summary manner so as to carry out liberally the purposes and needs of such drainage district." The drainage law is a special statutory proceeding complete in itself and as no appeal was allowed from an order of the court approving and confirming the report of the commissioners and overruling the exceptions thereto, no such right of appeal existed at the time of the alleged appeal in this case. Ackerman v. Green, 201 Mo. 231. The statute prescribing the duties of the commissioners requires them to assess benefits and damages which will accrue to each tract of land affected and also the damages to such tract. The commissioners did so assess benefits and damages as shown by their report, but the court in its order overruling the exceptions and confirming the report expressly excluded the element of damages allowed and therefore such order...