Kansas City, St. Joseph & Council Bluffs R.R. Co. v. Campbell, Nelson & Co.

• Decision Date: 31 May 1876
• Citation: 62 Mo. 585
• Parties: THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS R. R. CO., Appellant, v. CAMPBELL, NELSON & CO., et al., Respondents.
• Court: Missouri Supreme Court

62 Mo. 585

THE KANSAS CITY, ST. JOSEPH & COUNCIL BLUFFS R. R. CO., Appellant,

v.CAMPBELL, NELSON & CO., et al., Respondents.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Clay Circuit Court.

B. F. Stringfellow, for Appellant.

I. Nowhere on the record does it appear that the parties could not agree on the compensation to be made for the land taken. (Cunningham vs. Pac. R. R., 61 Mo., 33.) This being a question of jurisdiction, it can be raised even here for the first time.

II. An infant cannot waive service of process by himself or guardian.

III. The apportionment is so excessive as to call for the censure of this court.

J. W. Jenkins, with J. E. Merryman, for Respondents.

I. The facts are found by the commissioners, and like the verdict of a jury, when affirmed by the court sitting in the cause, will not be reviewed by this court, unless the court is satisfied that they erred in the premises on which they made their report. (St. L. & St. Jo. R. R. Co. vs. Richardson, 45 Mo., 466; 17 Mo., 376; 43 Barb. [N. Y.], 169; 24 Mo., 552; 2 How., 25; 6 How. Pr., 467; Abb. Dig. [Law of Corp.], 188.)

II. The court can only review the errors mentioned in the motion for a new trial. (Brady vs. Connelly, 52 Mo., 19.)

SHERWOOD, Judge, delivered the opinion of the court.

The proceeding, originally instituted by the Missouri Valley Railroad Co., of which the present plaintiff is the successor, had for its object the appropriation of a certain strip of land, to make what is known as a “Y,” and to connect the road of the petitioner with the bridge at Kansas City, and the road then leading to the bridge, on the north side of the Missouri river.

The subjoined plat more fully illustrates my meaning.

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE

We may remark at the outset, that there is a fatal defect observable in the record before us. It is this, that record does not show that the parties to this suit “cannot agree upon the proper compensation to be paid” for the land sought to be condemned. (Wagn. Stat., 326, § 1.)

This is a jurisdictional fact, and without it is apparent on the record, the court whose aid is sought, whether possessing special or general jurisdiction, is powerless to take any valid step in the premises. For, when the superior courts are engaged in the exercise of special and limited statutory powers, as in the present instance, they and their records occupy the same footing, and are subject to the same rules and tests, as courts whose jurisdiction is special and limited.

This point was so ruled in Ellis vs. Pacific R. R. (51 Mo., 200.) And the rulings of this court have been uniform, wherever it has been attempted by summary proceedings to divest the owner of his property, that the record must affirmatively show that the conditions precedent to the exercise of such extraordinary powers have been fully complied with. (Cunningham vs. Pacific R. R., 61 Mo., 33, and cases cited.)

As a matter of fact, the motion for a new trial and the one in arrest, both urged on the attention of the lower court the jurisdictional question on which we have been commenting; but this was quite immaterial, so far as concerns our action, whether this course was pursued or not, as this objection is a fundamental one, goes to the very foundation of the whole proceeding, and may be raised at any time and by any party.

There is another error patent of record, which is also sufficient to accomplish the reversal of the judgment of condemnation. I refer to the lack of service on the infant, William Campbell. Service of summons on a minor is to be had precisely as it must on an adult. (Wagn. Stat., 1007, § 7.) The provisions of section 9 of the same article, which permit a defendant to “acknowledge, in writing, indorsed on the writ, signed by his own proper signature, the service of such writ, and waive the necessity of the service thereof by an officer,” are applicable only to adults, or those capable of acting for themselves. For this reason it was incompetent, either for the infant to acknowledge service for himself, or for his guardian to make such acknowledgment for him. Nor is there any change effected in the ordinary manner of service of process on an infant in consequence of the statute in relation to appropriation of lands, providing, that where “the proceedings seek to affect the lands of persons under guardianship, the guardians must be made parties defendant.” The only object of the provision was, doubtless, to obviate the necessity of appointing a guardian ad litem, the legislature probably regarding the interests of the minor safer in...