Kansas City v. Duncan

• Decision Date: 11 November 1896
• Citation: 37 S.W. 513,135 Mo. 571
• Parties: KANSAS CITY v. DUNCAN et al.
• Court: Missouri Supreme Court

37 S.W. 513

135 Mo. 571

KANSAS CITY v. DUNCAN et al.

Supreme Court of Missouri, Division No. 1.

November 11, 1896.

STREET GRADING — CIRCUIT COURT'S JURISDICTION — CONSTRUCTIVE SERVICE — DUE PROCESS OF LAW — JUDGMENT — FINALITY.

1. In proceedings to grade a street, under Kansas City Amended Charter, art. 8, § 5, which provides that the circuit court shall obtain jurisdiction by an order of publication, made upon the filing by the mayor with the clerk of the court of a certified copy of the ordinance providing for the proposed grading, its jurisdiction will not be disturbed by the nonexercise of the further privilege, given to the court by such section, to order personal service upon all interested resident owners.

2. The existence of such privilege does not invalidate the section, on the ground that it contains a delegation to the court of the power to substitute the will of the court for the legislative will of the council having exclusive control of street improvements.

3. The provision of Kansas City Amended Charter, art. 8, § 5, that in proceedings for the grading of a street or alley, which are purely in rem, the court may acquire jurisdiction by a publication of the ordinance in a newspaper, directed "To whom it may concern," without naming them, is not in violation of the constitutional limitation against taking of property without due process of law, though some of the interested parties are resident owners.

4. Where such notice has been duly published, and parties interested fail to appear at the proper time, and object to the proceedings, and present their claims for damages, they will be presumed to have waived their rights to complain of what was done under it, and cannot, after four days from final judgment, have the same set aside, on the ground that they have never been notified in any manner of the pendency of the proceedings.

Appeal from circuit court, Jackson county; Thomas R. Morrow, Special Judge.

Proceedings by Kansas City against Elizabeth J. Duncan, Mary F. Duncan, and others to grade an alley. From a judgment overruling their motion to set aside the verdict, judgment, and finding of the commissioners, defendants Duncan appeal. Affirmed.

Hatch & Middlebrook, for appellants. Frank F. Rozzelle and C. S. Palmer, for respondent.

ROBINSON, J.

Proceedings were instituted under the amended charter of Kansas City to grade an alley from Tenth to Eleventh streets, between Wyandotte and Central streets, in that city. They were conducted regularly under the charter, and the verdict and report of the commissioners was duly filed and confirmed. To pay the amount of damages allowed by reason of the proposed grading, the commissioners assessed against Kansas City the sum of one dollar as the amount of the benefit the city at large would receive from the proposed grading; and the balance of the sum so awarded as damages, and not assessed against Kansas City, was assessed against the property in the benefit limits prescribed in the ordinance ordering the grading, except such pieces of private property to which damages were awarded on account of such grading where the damages exceeded the benefits assessed. Against lot 22, owned by appellants, facing on said alley, $3.92 was assessed at the trial of the cause, on July 30, 1892, for the ascertaining of damages and benefits to arise from the grading of the alley. Appellants failed to appear and file any claim for damages to their property, although many of the interested property owners did. Appellants afterwards filed with division No. 4 of the circuit court, where said proceedings were pending, the following motion (which being overruled, appellants prosecuted this their appeal): "Motion to Set Aside Judgment, etc. In the Circuit Court of Jackson County, Missouri, at Kansas City. October Term, 1892. Division 4. No. 14,958. In the Matter of Grading the Alley between Wyandotte and Central Streets, from Tenth to Eleventh Streets, in Kansas City. Come now Elizabeth H. Duncan and Mary F. Duncan, and, appearing specially for this purpose only, ask the court to set aside the verdict, judgment, and finding of the commissioners filed in said cause in so far as the same affects these claimants, for the following reasons, to wit: (1) They are now the owners in fee simple of lot 22, block 16, Ashburne's addition to the city of Kansas, which property will be damaged at least six hundred ($600) dollars by the grading as proposed by the ordinance of Kansas City on which these proceedings were instituted, as said grading will cause a cut of fourteen (14) feet in the rear of plaintiffs' lot, which abuts the said alley, thereby rendering said alley inaccessible to said lot, and the improvements thereon, which said improvements are worth several thousands of dollars. (2) Claimants aver that they never have been notified or served in any manner of the pendency of these proceedings, and knew nothing of them until after the commissioners filed their said report in this court, when they discovered the said proceedings by a mere accident. Hatch & Middlebrook." There is no claim that the proceedings in question were not taken in accordance with the charter, but the provisions of the charter are challenged as being in contravention of constitutional guaranties.

Section 5 of article 8 of the amended charter, under the head of "Power to Grade Streets, etc.," reads: "Sec. 5. Proceedings in circuit Court — Notice — Service — Parties — Claims for Damages to be Filed. When the mayor shall file or cause to be filed a certified copy of said ordinance in the circuit court or with the clerk thereof, such court, or a judge thereof, shall fix a day and place for assessing the damages and benefits to arise from the proposed grading or regrading, and shall make an order reciting the title of the ordinance and stating the general object and nature of the ordinance, and also stating the limits within which private property is benefited by the proposed grading or regrading as determined and prescribed by the ordinance, and said order shall be directed to all persons to whom it may concern, without naming them, notifying them of the day and place fixed for the ascertaining of damages and benefits to arise from said grading or regrading and that unless they file their claim of damages as herein required they shall thereafter be precluded from making any claim on account thereof. A copy of such order shall be published in each issue of a newspaper at the time doing the city printing for ten days (Sundays included), the last insertion to be not more than one week prior to the day so fixed for said hearing. The court or judge thereof may, at the time of making said order, further order that all or any portion of the residents of the city owning or having an interest in real estate fronting on the street, alley, avenue, public highway or part thereof, proposed to be graded or regraded, or in the real estate within the limits of the distict prescribed by the ordinance within which private property is deemed benefited by the proposed grading or regrading, be served with a copy of said order, either by delivering to each of such owners a copy of the order or leaving such copy at their usual place of abode with some member of their respective families over the age of 15 years and in the case of resident corporations, by service of said order in like manner as with summons in ordinary civil causes. If service of such notice cannot be made, on any or all of such parties as above described, within the city limits, when personal service is ordered by said court or judge, the returns on such notice shall so state. Thereupon an alias order, specifying a different date, may be made by said court or judge thereof in vacation, if deemed advisable, notifying such unserved parties of the facts, as in case of original notice above provided. Said cause may be continued or postponed from time to time. It shall not be required in any case to bring in any person other than the owners of the property or those interested therein, who were such at the time of the taking effect of the ordinance providing for the improvement, and the parties claiming or holding through or...