In re Condemnation of Land for Opening and Establishing a Public Parkway in Kansas City
| Decision Date | 05 April 1915 |
| Parties | In the Matter of the CONDEMNATION OF LAND FOR OPENING AND ESTABLISHING A PUBLIC PARKWAY in KANSAS CITY, MISSOURI, Known and Designated as WARD PARKWAY. LELIA L. HAYES and LILLIE E. LYLE, Appellants |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.
AFFIRMED.
Judgment affirmed.
House Manard, Allen & Johnson for appellants.
(1) The several divisions of the circuit court of Jackson county Missouri, constitute one court, but when a cause is assigned to any one, that division obtains the sole and exclusive jurisdiction thereof independent of each of the other divisions. State ex rel. v. Allen, 235 Mo. 298; Goddard to Use v. Delaney, 181 Mo. 564; State ex rel. v. Eggers, 152 Mo. 485; Haehl v. Railroad, 119 Mo. 325; Fenn v. Reber, 153 Mo.App. 219; People v. Woodruff, 129 Ill. 591; State ex rel v. Reynolds, 209 Mo. 161. (2) Appellants' motion to quash should have been sustained as Division No. 2 never obtained jurisdiction of the subject-matter of this proceeding: (a) Because the order of publication was made in Division No. 1, and that division returned the cause to the Assignment Division before proof of publication was filed therein. Section 11, article 13, charter of Kansas City, Missouri, 1909; In re Bledsoe Hill, 200 Mo. 630; Eaton v. St. Charles, 76 Mo. 492; St. Louis v. Gleason, 89 Mo. 67; Connors v. St. Joseph, 237 Mo. 612; Kansas City v. Duncan, 135 Mo. 571; City of Tarkio v. Clark, 186 Mo. 285; Priest v. Capitain, 236 Mo. 446; State ex rel. v. Muench, 217 Mo. 124; Heatherly v. Hadley and Owen, 4 Oregon, 1. (b) Because proof of publication was never filed in Division No. 2, but was filed in Division No. 1. City of Tarkio v. Clark, 186 Mo. 285; Priest v. Capitain, 206 Mo. 446; State ex rel. v. Muench, 217 Mo. 124; Heatherly v. Hadley and Owen, 4 Oregon, 1; Doddridge v. Patterson, 222 Mo. 146; In re Bledsoe Hill, 200 Mo. 630. (3) The judgment in this proceeding is void and appellants' motion to quash should have been sustained because the jury was empaneled at a different time and a different place than the time and place set forth in the order of publication. Section 11, article 13, charter of Kansas City, 1909; Russell v. Grant, 122 Mo. 161; Ohlman v. Clarkson Saw Mill Co., 222 Mo. 62; Meier v. St. Louis, 180 Mo. 391; Rusk v. Thompson, 170 Mo.App. 76, 156 S.W. 64; Andrews v. St. Louis, 47 Mo. 479.
A. F. Evans and Jay M. Lee for respondent.
(1) The circuit court of Jackson county is one court, not several; and causes may be sent from one judge to another in division as the individual judges may agree and direct. R. S. 1909, sec. 3971; State ex rel. v. Allen, 235 Mo. 298, 306; Haehl v. Railroad, 119 Mo. 325, 339. (2) The circuit court had jurisdiction of the cause and of appellants: (1) Of the cause by due filing of petition with copy of ordinance and map and by orders entered in due course in the case; Charter of Kansas City, art. 13; Appellants' Abstract of Record, page 2; State ex rel. v. Muench, 217 Mo. 124; Leonard v. Sparks, 117 Mo. 103. (2) Of the persons of appellants; Regent Realty Co. v. Armour Packing Co., 112 Mo.App. 271; Rumsey Mfg. Co. v. Baker, 35 Mo.App. 217. (3) Division 2 became possessed of all of circuit court's jurisdiction of both cause and person: (a) Of the cause; Appellants' Abstract of Record, pp. 45, 46, 59, 60; R. S. 1909, secs. 3969, 3970, 3971. (b) Of the persons. Ibid. Appellants' Abstract of Record, page 99; State ex rel. v. Allen, 235 Mo. 298, 306; Connors v. St. Joseph, 237 Mo. 612, 619.
This is an appeal by Lelia L. Hayes and Lillie E. Lyle from an order overruling a motion to quash a special execution issued upon a judgment rendered in the circuit court of Jackson county, Missouri, in a proceeding therein for the condemnation of land in Kansas City for a parkway known as "Ward Parkway" under the power given by the charter of said city. In this proceeding certain lands, including some owned by appellants, were condemned, appropriated, and taken by Kansas City for said Parkway, and damages for the taking thereof were awarded against Kansas City in favor of the owners thereof, including appellants. The territory adjacent to said Parkway, and benefited by the establishment thereof, was included in a benefit district created by the proceeding, and the property therein, (among which was certain other lands owned by appellants), was assessed with the benefits accruing to it by virtue of the creation of said Parkway. The court in said proceeding then rendered judgment that Kansas City, upon payment of the compensation awarded to the owners of the land taken, should have and hold the same for a public parkway, and also rendered judgment that Kansas City recover in one installment the amounts assessed as benefits against the property benefited and that said property stand charged therewith and be bound for the payment of the respective assessments thereon, and directed the enforcement of the collection thereof by a special execution issued against the lot, tract or parcel of land charged with the lien thereof. Said judgment was rendered May 18, 1912, and became final.
On July 2, 1913, appellants not having paid the benefits assessed against their property in the benefit district, which assessments were then long past due, the special execution involved herein was issued, returnable on the first day of the September, 1913 term, it being September 8th of that year.
On the 9th of July, appellants filed motion to quash said execution and on the 20th of that month, they filed an amended motion to quash which was heard by the court on July 30, 1913, and overruled. Thereupon an appeal was taken, and, on the theory that jurisdiction thereof was in the Supreme Court, the case was sent to that tribunal. The Supreme Court being of the opinion that jurisdiction was in this court sent it back here, and we now have it for determination.
The ground of appellant's motion is that the trial court, in the condemnation proceeding, obtained no jurisdiction. This claim grows out of the following facts:
The condemnation proceeding was instituted during the September term, September 28, 1911, and at that time the circuit court of Jackson county was composed of eight divisions, seven of which held their meetings in separate court rooms in the county court-house in Kansas City, and one at the county court-house in Independence. At the beginning of each term the various judges sit en banc and select one of their number to act as Assignment Judge for that term, and his division is called the Assignment Division. A part of his duties is to assign causes to the various divisions for trial.
On the day the condemnation proceeding was filed, the Assignment Judge assigned it to Division No. 1 for further hearing. And on the same day Division No. 1 made and entered of record an order of publication in due and proper form notifying all concerned in said proceedings that on November 3, 1911, in the court room of Division No. 1 of the circuit court of Jackson county, Missouri, at Kansas City, Missouri, at the county courthouse in Kansas City, Missouri, a jury would be empaneled to ascertain and fix the compensation to be paid for the property taken or damaged and also the benefits, if any, to be assessed against the property in the benefit district, and to make the assessments therefor. In this order of publication it was provided that the order should be published in each issue of a certain newspaper (named in said order) in Kansas City, Missouri, for four successive weeks, the last insertion to be not more than one week prior to the day fixed for the hearing. It was further provided in said order of publication that the parties owning or having an interest in the real estate proposed to be taken or damaged, be served within said city with a copy of the order, either by delivering to each of said owners or parties interested, at any time before the day fixed therein for the hearing, a copy of said order, or by leaving such copy at their usual place of abode with some member of their respective families over the age of fifteen years. All of which was authorized by section 11, article 13 of the Kansas City Charter of 1909, being the charter in force.
On November 2, 1911, it being still the September term, and on the day before the day set in the order of publication for the empaneling of the jury, Division No. 1, for good cause shown, made and entered of record an order that the proceeding be returned to the Assignment Division. The next day, November 3, 1911, proof of the order of publication was filed in Division No. 1 showing that the order was published in the designated paper for the requisite length of time and that a copy of said order of publication was personally served upon each of the appellants on October 11, 1911, in Kansas City.
The same day, in the Assignment Division, an order was entered of record reciting that Kansas City appeared as did all persons and parties interested in this proceeding, whereupon the proceeding was assigned to Division No. 2 of said court for further hearing. Thereafter on the same day, in Division No 2, an order was entered of record reciting that Kansas City appeared as did all parties and persons interested in said proceeding, and that Kansas City filed and submitted proof of the lawful publication and personal service of the order of publication, and the court found that both were made as required by law. The next day, November 4, 1911, a jury was empaneled in said Division No. 2. Some weeks thereafter a trial was had, and on February 14, 1912, the jury returned a verdict allowing the sum of $ 1775 as damages to appellants for the taking of certain lots...
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