Kansas City v. Block

• Citation: 74 S.W. 993,175 Mo. 433
• Parties: KANSAS CITY v. BLOCK, Appellant
• Decision Date: 09 June 1903
• Court: United States State Supreme Court of Missouri

74 S.W. 993

175 Mo. 433

KANSAS CITY v. BLOCK, Appellant

Supreme Court of Missouri, Second Division

June 9, 1903

Appeal from Jackson Circuit Court. -- Hon. Edward P. Gates, Judge.

Affirmed.

Leon Block for appellant.

(1) The circuit court had no jurisdiction. The copy of the ordinance filed, and which was the foundation of the entire proceeding nowhere showed that the street to be graded or the property to be affected by such grading is situated in Kansas City Missouri, or even in Jackson county, Missouri. Kansas City v. Smart, 128 Mo. 272; Kansas City v Vineyard, 128 Mo. 75; McKinney v. Harral, 31 Mo.App. 41; Schell v. Leland, 45 Mo. 289; Railroad v. Carter, 85 Mo. 448; Johnson v. Fischer, 56 Mo.App. 552; Cicotte v. Anciaux, 53 Mich. 232; Tegler v. Mitchell, 46 Mo.App. 349. Neither this court nor the circuit court could take judicial notice that McGee street is in Kansas City, Missouri. Corrigan v. Morris, 43 Mo.App. 456; Allen v. Scharringhausen, 8 Mo.App. 229; Cicotte v. Anciaux, 53 Mich. 232; Carr v. Lewis Coal Co., 96 Mo. 155. (2) The notice by publication was insufficient to confer jurisdiction. It failed to notify the parties against whose property benefits were to be assessed how they would be affected. The notice did not state that special judgment would be rendered against their land and that such judgment would bear fifteen per cent interest. The notice must substantially apprise the owners what it is proposed to do and in what manner they would be affected. Bobb v. Woodward, 42 Mo. 482; Railroad v. Fitchburg, 121 Mass. 131; Harris v. Marblehead, 10 Gray (Mass.) 40; Austin v. Allen, 6 Wis. 132; Babb v. Carver, 7 Wis. 124. (3) The question as to the jurisdiction of the court may be raised at any time. Railroad v. Campbell, 62 Mo. 585; Railroad v. Munson, 57 Mich. 43.

R. J. Ingraham and W. O. Thomas for respondent.

(1) The ordinance in question is an ordinance of Kansas City, Missouri, the charter has been complied with, and the circuit court had jurisdiction. Charter (Ed. 1899), sec. 5, arts. 3 and 8; Kansas City v. Smart, 128 Mo. 272; Kansas City v. Vineyard, 128 Mo. 75. "The charter of Kansas City is a public act of which courts of this State are required to take notice," and the boundaries in this proceeding are streets described in the charter, and the benefit district and McGee street are clearly in Kansas City, Missouri. Charter (Ed. 1898), sec. 35, art. 17; Kansas City v. Smart, 128 Mo. 298; Kansas City v. Vineyard, supra. Descriptions of benefit districts in this class of proceedings are good when intersections of streets and alleys in Kansas City, Missouri, are given as monuments fixing boundaries. (2) The order and notice of publication conform to the city charter. Charter, sec. 5, art. 8. And the provisions of the charter as to notice in grading cases are valid. Kansas City v. Duncan, 135 Mo. 571. The alleged error on appellant's own statement affects parties not appealing, and does not affect him, and the "Supreme Court shall not reverse the judgment of any court, unless it shall believe that error was committed by such court against the appellant or plaintiff in error and materially affecting the merits of the action." R. S. 1899, sec. 865; Kansas City v. Mastin, 68 S.W. 1037; Kansas City v. Smart, supra; St. Louis v. Lanigan, 97 Mo. 176; Dickenson v. Chrisman, 28 Mo. 134.

OPINION

FOX, J.

This proceeding originated in the circuit court of Jackson county. There was no bill of exceptions filed in the cause, preserving the action of the trial court in the disposition of this cause. Hence, our attention is directed exclusively to the record proper in this proceeding for the errors complained of by the appellant.

The abstract of record as furnished by the appellant, with the omissions as suggested by respondent, is about as follows:

"On December 2, 1899, there was filed in the office of the clerk of the circuit court of Jackson county, the following:

"'An ordinance to grade McGee street from Ninth to Eleventh.

"'Be it ordained by the common counsel of Kansas City:

"'Section 1. That McGee street from Ninth to Eleventh street shall be graded the full width thereof and to the established grade of the same.

"'Section 5. Whereas, private property may be disturbed or damaged by the grading herein authorized and provided for, . . . the common council prescribes and determines the limits within which private property is benefited by the proposed grading herein mentioned, and the limits within which such property shall be assessed and charged to pay such remuneration or damages, to be as follows, to-wit:

"'Beginning at the south line of Eighth street and the center of the alley immediately east of McGee street; thence south along the center line of said alley to the north line of Twelfth street; thence west along the north line of Twelfth street to the east line of Grand avenue; thence north along the east line of Grand avenue to the south line of Eighth street; thence east along the south line of Eighth street to the place of beginning.

"'Approved October 17, 1899.

"'James M. Jones, Mayor.

"'Attest: C. S. Curry, City Clerk.

"'State of Missouri, county of Jackson, Kansas City, ss:

"'I, C. S. Curry, city clerk of Kansas City, Missouri, hereby certify that the annexed and foregoing is a true and correct copy of an ordinance of said city, No. 13150, entitled "An ordinance to grade McGee street from Ninth to Eleventh street, approved October 17, 1899," as the same appears of record and on file in my office.

"'In testimony whereof, I have hereunto set my hand and affixed the seal of Kansas City, aforesaid, this 24th day of November, A. D., 1899.

"'(L. S.) "'C. S. Curry, City Clerk,

"'By E. A. Norris, Deputy.'

"On December 9, 1899, said circuit court of Jackson county, Missouri, made the following order of publication in said cause:

"'To whom it may concern, Greeting:

"'Whereas a certified copy of an ordinance of Kansas City, Missouri, No. 13150, approved October 17, 1899, and entitled, "An ordinance to grade McGee street from Ninth to Eleventh streets," was by the mayor of Kansas City, Missouri, caused to be filed in the court and said ordinance being for the grading of McGee street from Ninth to Eleventh streets, in Kansas City, Missouri, the full width thereof to its established grade, the grading to be paid for in special taxbills against the lands that may be charged with the cost thereof according to law and for the ascertaining and assessing of the damages and benefits to arise from said proposed grading, all as provided by the charter of said city, and the limits determined and presented by said ordinance within which private property is benefited by said proposed grading being as follows, to-wit: Beginning at the south line of Eighth street and the center of the alley immediately east of McGee street; thence south along the center line of said alley to the north line of Twelfth street; thence west along the north line of Twelfth street to the east line of Grand avenue; thence north along the east line of Grand avenue to the south line of Eighth street; thence east along the south line of Eighth street to the place of beginning."

"'Now, therefore, you and each of you are hereby notified that January 8, 1900, is the day and the courtroom of Division 3 of the circuit court of Jackson county, Missouri, at Kansas City, is the place, hereby fixed for the ascertaining and assessing of damages and benefits that may arise from said proposed grading, and that unless on or before the day next before the day set for the hearing aforesaid you file your claim or claims for damages containing a description of the property claimed to be damaged and the interest of the claimant therein, you and each of you shall be forever thereafter precluded from making any claim on account thereof.'

"On January 5, 1900, this appellant, Leon Block, filed in said cause in said court his claim for damages, stating that he is the owner of lot 145 in Swope addition, located on the east side of McGee street between Tenth and Eleventh streets, and that said property would be damaged by said proposed grading in the sum of seventy-five hundred dollars, which he prayed might be allowed to him as provided by law.

"On March 19, 1900, the commissioners filed their report of damages and benefits. On March 23, 1900, and at the same term of court, this appellant, Leon Block, filed a motion for a new trial. On April 5, 1900, at the same term, said motion for new trial was overruled, to which ruling of the court said Leon Block excepted at the time. Said report of the commissioners and verdict was thereupon at same time approved and confirmed by the court and recorded. By said report and verdict said commissioners allowed to said Leon Block, claimant, on account of damages to said lot 145 in Swope's addition, the sum of four hundred dollars.

"On April 6, 1900, appellant filed affidavit for appeal and was given until June 30, 1900, to file bill of exceptions. On April 23, 1900, the court fixed the amount of appeal bond to be given by this appellant at $ 200. On April 24, 1900, this appellant filed affidavit and bond for appeal, the same were approved by the court, and the court allowed him an appeal to the Supreme Court of Missouri as prayed by him."

This is substantially the record pertinent to the questions presented for review upon this appeal.

It will be observed that this is an appeal from the judgment of the circuit court, confirming the report of the commissioners in the assessment of damages, in behalf of appellant, on account of damages to his property, by reason of the grading and improvement of the street, as contemplated by the ordinance herein quoted.

The ordinance filed in the...