In re West Terrace Park

• Decision Date: 30 June 1903
• Citation: 176 Mo. 229,75 S.W. 973
• Parties: In re WEST TERRACE PARK. KANSAS CITY v. MULKEY et al.
• Court: Missouri Supreme Court

75 S.W. 973

176 Mo. 229

In re WEST TERRACE PARK KANSAS CITY v. MULKEY et al.

Supreme Court of Missouri.

June 30, 1903.

CONDEMNATION PROCEEDINGS — APPEAL — REVERSAL — SECOND TRIAL OR PROCEEDING — PRIOR VERDICT.

1. Though part only of defendants in a proceeding to condemn land for a park appeal, the verdict and judgment as to all is set aside by a reversal.

2. Whether a proceeding by a city to condemn land for a park be a continuation of the original proceeding after a reversal on appeal by part of defendants, or a new one based on an ordinance passed after repeal of the ordinance authorizing the first proceeding, the city charter providing that in case of such a repeal the judgment for compensation and benefits shall be void, the verdict on the first trial cannot be made the basis for the verdict on the second trial.

In Banc. Appeal from Circuit Court, Jackson County; Jas. Gibson, Judge.

In the matter of West Terrace Park. Condemnation proceeding by the city of Kansas City. From the judgment, defendants William Mulkey and another appeal. Affirmed.

Gage, Ladd & Small, for appellants. R. E. Ball and D. J. Haff, for respondent.

ROBINSON, C. J.

This is a proceeding by Kansas City, begun in June, 1899, to condemn lands for a park, to be known as "West Terrace," under an ordinance of the city passed and approved April 5th of that year. The lands sought to be condemned included 28.62 acres, of which amount the appellants William and Catherine Mulkey own about 6 acres, valued by the jury in the present proceeding at $55,590. For answer, defendants William and Catherine Mulkey (the appellants here) filed the following:

"Now at this day come the defendants, Catherine Mulkey and William Mulkey, her husband, and show to the court that heretofore, to wit, at the April term, 1896, of this court, the said city of Kansas City, under and by virtue of an ordinance of said city providing for the establishment of said West Terrace Park, approved on the 11th day of September, 1895, duly instituted proceedings to condemn the same property of these defendants which said city proposes to condemn in this proceeding as a part of said West Terrace Park; that said proceeding was regularly prosecuted to a final determination in this court, and a verdict was rendered therein on the 5th day of October, 1896, duly assessing the value of defendants' said property at the price and sum hereinafter mentioned. The said city filed no objections or exceptions to said verdict, and that on or about the 13th day of October, 1896, at the instance and request of said city, said verdict was confirmed and judgment rendered accordingly, condemning said property as and for said West Terrace Park. That said city never appealed from said verdict and judgment, and that the only parties who did appeal therefrom were Martha E. Bacon, James Munroe, and Willard N. Munroe, owners of a small portion of the property in the benefit district, which had been assessed with benefits in said proceeding, said appellants giving a supersedeas bond; and that said appeal remained pending in the Supreme Court of Missouri until disposed of as hereinafter set forth. That afterwards, on the 23d day of June, 1897, the park board of said city caused to be prepared and introduced into the common council of said city an ordinance to repeal said first-mentioned ordinance, and to modify said West Terrace Park by providing for the condemnation therefor of a part of the property condemned by said first proceeding, which said ordinance said council refused to pass. That afterwards, on the 5th day of September, 1898, said park board prepared and caused to be introduced into said council another ordinance to repeal said first-mentioned ordinance, and to reduce and modify said park by providing for the condemnation therefor of a part only of the property sought to be condemned under said first-mentioned ordinance, which said ordinance said council also refused to pass. That, in each of said ordinances so prepared and introduced by said park board, the property of these defendants was part of the property proposed to be condemned and taken as part of said West Terrace Park. That on the 5th day of April, 1899, with the concurrence of the Board of Park Commissioners, and before any benefits assessed in said first proceeding were paid, and not until then, an ordinance was duly passed by said city repealing said first-mentioned ordinance, which said ordinance is in words and figures as follows: [Here ordinance is copied in full.] That afterwards, on April 26, 1899, the attorneys for said city and for said Bacon and others, appellants in said first-mentioned proceedings, filed in the Supreme Court of Missouri a stipulation in writing, in words and figures as follows:

"`In the Supreme Court of the State of Missouri. In the Matter of the Condemnation of Land for Opening and Establishing a Public Park in the West Park District in Kansas City, Missouri, to be Known as West Terrace. Kansas City, Respondent, v. Martha E. Bacon, James Munroe, and W. N. Munroe, Appellants. Stipulation. By authority of an ordinance of Kansas City, Missouri, number 11,429, approved April 5th, A. D. 1899, and entitled, "An ordinance to repeal ordinance number 6,751, of Kansas City, Missouri, approved September 11th, A. D. 1895, providing for the establishment of a public park in the West Park district in Kansas City, Missouri, to be known as West Terrace," it is hereby stipulated between the respondent and appellants in the above-entitled cause, that an order may be entered by this court reversing and remanding the above entitled cause to the circuit court of Jackson county, Missouri, and Kansas City, respondent in the above-entitled cause, hereby waives all right to exceptions to said order, and all right to file any motion for rehearing therein. Appellants to have taxed in their favor all taxable costs of appeal incurred by them. D. J. Haff, Attorney for Respondent. Brown, Chapman & Brown, Langston Bacon, Attorneys for Appellants. Filed April 26, 1899. Jno. R. Green, Clerk.'

"That said Supreme Court, without hearing said cause, and pursuant to said stipulation and repealing ordinance, entered an order in said cause on the 26th day of April, 1899, in words and figures as follows:

"`In the Supreme Court of Missouri, April Term, 1899. Court in Banc. In re West Park District. Kansas City, Respondent, v. Martha E. Bacon, James Munroe, and Williard N. Munroe, Appellants. Appeal from Jackson County Circuit Court. Now at this day come said parties, by attorneys, and upon their stipulation it is considered and adjudged by the Court that the judgment rendered in this cause by the Jackson County Circuit Court be reversed, annulled and for naught held and esteemed, and that the said appellants be restored to all things which they have lost by reason of the said judgment. It is further considered and adjudged by the Court that the said cause be remanded to the said Jackson County Circuit Court for further proceedings to be had therein, and that the said appellants recover against the said respondent their costs and charges herein expended, and have therefor execution.

"`State of Missouri, ss.: I, Jno. R. Green, clerk of the Supreme Court of the State of Missouri, certify that the foregoing is a full, true and complete transcript of the judgment of said Supreme Court, entered of record at the April term thereof, 1899, and on the 26th day of April, 1899, in the above entitled cause. Given under my hand and seal of said court, at the City of Jefferson, this 4th day of May, 1899. John R. Green, Clerk. [Seal.]'

"That afterwards, the attorneys for said city procured an order to be entered in this court on the 27th day of May, 1899, dismissing said cause. All of which said orders and proceedings in said Supreme Court and in this court were without the knowledge or consent of, and without notice to, the said defendants. But these defendants say that nevertheless said city never did in good faith, or at all, abandon its design and purpose of appropriating the property of these defendants as and for a part of said West Terrace Park. That, on the same day and at the same session of the common council of Kansas City said ordinance repealing said first-mentioned ordinance and annulling said first proceeding was passed, and immediately thereafter, to wit, on the 3d day of April, 1899, the ordinance under which this proceeding was instituted was passed by the common council of said city, and that said repealing ordinance was approved by the mayor of said city on the 5th day of April, 1899, at 11:10 o'clock in the morning, and at 11:20 o'clock in the morning of the same day the ordinance under which this proceeding was instituted was approved by said mayor, and that this proceeding was instituted in this court on the 3d day of June, 1899. That the ordinance under which this proceeding was instituted differs from said first ordinance and proceeding only in this: that the area of the park to be established is less, by the amount of 16 51/100 acres, than was provided for in said first-mentioned ordinance, and that such reduction in area is accomplished by omitting from the property to be taken a portion of the property condemned in the first proceeding, but not including any property, as a part of said park, that was not condemned by said first proceeding, the area under the first proceedings being 45 13/100 acres, and under this proceeding 28 62/100 acres. And these defendants say that said city passed said ordinance repealing and annulling said first-mentioned ordinance and proceeding, and enacted the ordinance providing for, and instituted this proceeding. simply and solely for the purpose of omitting a part of the property originally included in said West Terrace Park, and of securing the remainder thereof, to wit, the defendants' said property and the other property retained for said park, at a new, and, if possible, a less...