Kansas City v. Jones Store Co.

• Decision Date: 03 June 1930
• Docket Number: No. 29710.,No. 30205.,29710.,30205.
• Citation: 28 S.W.2d 1008
• Parties: KANSAS CITY v. JONES STORE COMPANY ET AL., Appellants. KANSAS CITY v. THE JONES STORE COMPANY ET AL., Appellants.
• Court: Missouri Supreme Court

28 S.W.2d 1008

KANSAS CITY v. JONES STORE COMPANY ET AL., Appellants. KANSAS CITY v. THE JONES STORE COMPANY ET AL., Appellants.

No. 29710.

No. 30205.

Supreme Court of Missouri, Court en Banc.

June 3, 1930.

Appeal from Jackson Circuit Court. — Hon. A. Standford Lyon, Judge.

AFFIRMED.

Winger, Reeder, Barker, Gumbiner & Hazard for appellant The Jones Store Company.

Charles L. Carr, Louis R. Weiss and John R. Moberly for appellant Kansas City City Public Service Company.

Erwin O. Kunan for appellant Kansas City Socialer Turnverein.

Russell Maloney for appellants George A. Jakobe et al.

Rosenberger, McVey & Freet for appellants Albert L. Gustin and John W. Foyle.

Charles H. Thompson for appellants Ada E. Waddell and Leonard Everett.

(1) The court was without jurisdiction to amend the bill of exceptions after the time for filing said bill had expired and after the bill had been fixed, settled, allowed, signed and sealed by the court. Sec. 1464, R.S. 1919; Burnside v. Wand, 170 Mo. 531; State v. Gartrell, 171 Mo. 489; State v. Libby, 203 Mo. 596; Althoff v. Transit Co., 204 Mo. 166; Reed v. Colp, 213 Mo. 577. (2) A nunc pro tunc entry can be made only upon the basis of the record in the case, the judge's docket, the clerk's minutes, or some paper filed in the case. Stenographer's notes cannot be the basis for a nunc pro tunc entry. Becher v. Deuser, 169 Mo. 159; Missouri, Kansas & Eastern Ry. Co. v. Holschlag, 144 Mo. 253; Padgitt v. Moll, 159 Mo. 155. (3) The court had no power to make by a nunc pro tunc entry a finding which it should have made during the trial of the cause. People v. Scott, 22 N.W. (Mich.) 274; Burnside v. Wand, 170 Mo. 531; Ross v. Ross, 83 Mo. 100; Fetters v. Baird, 72 Mo. 389; Hyde v. Curling and Robertson, 10 Mo. 360; Evans v. Fisher, 26 Mo. App. 541. (4) Since the court was without jurisdiction to render a judgment, it could not confer jurisdiction upon itself by means of a nunc pro tunc entry. McMenamy Investment Co. v. Catering Co., 267 Mo. 341; Kansas City v. Woerishoeffer, 249 Mo. 26. (5) The trial court was without jurisdiction, power or authority to entertain motion to amend bill of exceptions (theretofore filed) and the court erred in admitting in evidence said motion. Secs. 1460, 1464, 1277, R.S. 1919; Rule 11 of Supreme Court of Missouri; Coy v. Landers, 146 Mo. App. 413; State v. Gartrell, 171 Mo. 489; State v. Libby, 203 Mo. 596; Althoff v. Transit Co., 204 Mo. 166; Smith v. Millers' Mut. Fire Ins. Co., 6 S.W. (2d) 926; Keet & Roundtree D.G. Co. v. Williams, 202 S.W. 621; Atchison v. Ry. Co., 94 Mo. App. 572. (6) The trial court erred in admitting in evidence Exhibit 3, transcript of stenographic notes, and the parol testimony of R.C. Adams. Becher v. Deuser, 169 Mo. 159; Padgitt v. Moll, 159 Mo. 143; State v. Libby, 203 Mo. 596; Young v. Young, 165 Mo. 624; Brown & Biglow v. Heier, 194 S.W. 1071; Fidelity & Deposit Co. of Maryland v. Fulsome, 193 S.W. 620; Thaler v. Niedermeyer, 185 Mo. App. 254; Shepard v. Tinsley, 149 Mo. App. 428; State v. Jeffors, 64 Mo. 376. (7) The trial court erred in overruling the motion to strike out the motion of Kansas City to amend bill of exceptions and in sustaining said motion. The court was without jurisdiction, power or authority to render and enter of record its judgment and order of October 26, 1929, amending the bill of exceptions. The evidence introduced by Kansas City was insufficient to justify or authorize an amendment of the bill of exceptions. There is no proper basis, call or direction for the incorporation of the transcript of the stenographic notes. Collier v. Lead Co., 208 Mo. 273; State v. Libby, 203 Mo. 596; Burnside v. Wand, 170 Mo. 531; Becher v. Deuser, 169 Mo. 159; Young v. Young, 165 Mo. 624; M.K. & E. Ry. Co. v. Holschlag, 144 Mo. 253; Saxton v. Smith, 50 Mo. 490; State v. Jeffors, 64 Mo. 376; State v. Ruck, 194 Mo. 416. (8) The court was without jurisdiction, power or authority to entertain motion to correct record and erred in admitting in evidence said motion. Hyde v. Curling, 10 Mo. 359; Priest v. McMaster, 52 Mo. 60; Gibson v. Chouteau's Heirs, 45 Mo. 171; Ross v. Ross, 83 Mo. 100; Burnside v. Wand, 170 Mo. 531; City of Tarkio v. Clark, 186 Mo. 285; Grossman v. Patton, 186 Mo. 661; In re Bledsoe Hill, 200 Mo. 630; Sec. 1277, R.S. 1919. (9) The trial court erred in admitting the parol testimony of J.C. Petherbridge. Young v. Young, 165 Mo. 624; Fidelity & Deposit Co. of Maryland v. Fulsome, 193 S.W. 618; Thaler v. Niedermeyer, 195 Mo. App. 250; Shepard v. Tinsley, 149 Mo. App. 428. (10) The trial court, in its order of October 26, 1929, made a judicial finding regarding the qualifications of the jurors empaneled January 7, 1928, without proper basis, foundation and authority. Sec. 142, Art. 6, Charter of Kansas City (1925); 15 C.J. 975, 976, sec. 395; Neil v. Tubb, 241 Mo. 666; State v. Libby, 203 Mo. 596; Burnside v. Wand, 170 Mo. 531; State v. Jeffors, 64 Mo. 376; M.K. & E. Ry. Co. v. Holschlag, 144 Mo. 253; Hyde v. Curling, 10 Mo. 359; Ross v. Ross, 83 Mo. 100; City of Tarkio v. Clark, 186 Mo. 285; In re Bledsoe Hill, 200 Mo. 630; St. Louis v. Glasgow, 254 Mo. 262; Kansas City v. Mastin, 169 Mo. 80. (11) The circuit court did not acquire or retain jurisdiction either to hear or submit this cause to the jury, or to receive the verdict, or to enter judgment herein, and erred in so doing. Condemnation proceedings for the taking of private property operate in invitum, in derogation of common law and common right, and must be considered and treated as strictissimi juris and it must affirmatively appear on the face of the record that every step prescribed by the law has been strictly pursued as a prerequisite to the court's acquiring or retaining jurisdiction. Otherwise, all proceedings are coram non judice. St. Louis v. Glasgow, 254 Mo. 262; Myers v. Williams, 199 Mo. App. 21, 199 S.W. 566; Schulte v. Currey, 173 Mo. App. 578; Chicago, R.I. & Pac. Ry. Co. v. Young, 96 Mo. 39; K.C. St. Joseph & C.B. Railroad Co. v. Campbell, Nelson & Co., 62 Mo. 585; Ellis v. Pac. Railroad Co., 51 Mo. 200; Keane v. Strodtman, 18 S.W. (2d) 898; Orrick School District v. Dorton, 125 Mo. 439; Cunningham v. Pac. Railroad, 61 Mo. 33; Colville v. Judy, 73 Mo. 651; Leslie v. St. Louis, 47 Mo. 474. (a) Ordinance No. 55188, the order of court and the notice published, are void and of no effect by reason of their failure to describe the entire tract or tracts of private property taken by metes and bounds, or otherwise, as required by the Charter of Kansas City. Insufficient Description: State ex rel. Siegel v. Grimm, 314 Mo. 242, 284 S.W. 493; Williams v. Kirby, 169 Mo. 622; Charter of Kansas City 1925, Art. VI, Secs. 129, 131, 132, 133, 134, 135, 136. Insufficient Notice: Kunzi v. Hickman, 243 Mo. 103; Priest v. Capitan, 236 Mo. 446; Stanton v. Thompson, 234 Mo. 7; Ohlmann v. Sawmill Co., 222 Mo. 62; C.R.I. & P. Ry. Co. v. Young, 96 Mo. 39; Schulte v. Currey, 173 Mo. App. 578; Doemker v. Richmond Heights, 18 S.W. (2d) 394; Parker v. Burton, 172 Mo. 85; Fore v. Hoke, 48 Mo. App. 254; City of Tarkio v. Clark, 186 Mo. 285; Parlin v. Hord, 145 Mo. 117. (b) The record does not show that the jury empaneled to try this proceeding was composed of "six disinterested freeholders of the city" as required by the Charter of Kansas City (Art. VI, secs. 128, 142, 149, 151, 152, 153, 155). This is an essential prerequisite to the court's acquiring or retaining jurisdiction. In re Bledsoe Hill, 200 Mo. 630; City of Tarkio v. Clark, 186 Mo. 285; Grossman v. Patton, 186 Mo. 661; Jefferson County v. Cowan, 54 Mo. 234; Jones v. Zink, 65 Mo. App. 409; Fore v. Hoke, 48 Mo. App. 254; Springfield v. Whitlock, 34 Mo. App. 642; State ex rel. Greeley v. St. Louis, 1 Mo. App. 503. (12) The court did not have jurisdiction to render or enter judgment condemning and appropriating the improved property of Kansas City Public Service Company lying between Lots 244 and 253, Block 18, McGee's Addition, and the verdict of the jury and the judgment of the court are void on their face, in that the verdict did not award any compensation or damages for said property taken, in violation of the Charter of Kansas City 1925, Art. VI, Secs. 128, 149, 152, 156, Constitution of Missouri, Art. II, Sec. 21, and Article XIV, Sec. 1, of Amendments to the Constitution of the United States; and the court erred in confirming said verdict and rendering and entering judgment condemning said property, without any award of compensation or damages. The verdict omits any reference to said improved property, does not describe same, and makes no award of compensation for the taking thereof. The judgment, however (broader than the verdict), confirms the verdict and, pronouncing the condemnation of the property within the limits set forth in the ordinance, condemns and appropriates to public use the improved property above referred to, which the verdict omits and ignores in its awards of compensation and damages. Delaware L. & W. Railroad Co. v. Morristown, 276 U.S. 182, 72 L. Ed. 523; Lemon v. Drainage District, 310 Mo. 171, 275 S.W. 46; Anderson v. Drainage & Levee District, 309 Mo. 216, 274 S.W. 455; Jasper Land & Improvement Co. v. Kansas City, 293 Mo. 674, 239 S.W. 866; Greenwell v. Wills & Sons, 210 Mo. App. 651, 239 S.W. 583; Anderson v. Pemberton, 89 Mo. 61; Missouri Pacific Ry. Co. v. Carter, 85 Mo. 448; Spurlock v. Dornan, 182 Mo. 242; Fore v. Hoke, 48 Mo. App. 254. (13) The compensation and damages awarded by the jury to Kansas City Public Service Company for land taken and for improvements (buildings) taken or damaged, are so grossly inadequate, unreasonable, arbitrary, discriminatory, such a flagrant abuse of power beyond any reasonable discretion, as to constitute certain, unjustifiable, unwarranted, wholesale confiscation of said property; in violation of the due process and equal protection clause of the United States Constitution, Amendment XIV, sec. 1; in violation of the just...