Kansas City v. Mastin

• Decision Date: 04 June 1902
• Citation: 68 S.W. 1037,169 Mo. 80
• Parties: KANSAS CITY v. MASTIN et al.
• Court: Missouri Supreme Court

68 S.W. 1037

169 Mo. 80

KANSAS CITY v. MASTIN et al.

Supreme Court of Missouri.

June 4, 1902.

MUNICIPAL CORPORATIONS—PARKWAY—CONDEMNATION —NOTICE TO LAND OWNERS— PUBLICATION—KANSAS CITY CHARTER—VALIDITY —ORDINANCES—CONDITIONS PRECEDENT—APPEAL—NEW TRIAL—BILL OF EXCEPTIONS.

1. Under Kansas City Charter 1889, art. 10, § 16, providing for the setting aside of a verdict in condemnation proceedings on motion presented within four days thereafter, a motion for a new trial, not filed within the four days, may properly be overruled.

2. The supreme court will not review exceptions presented in a motion for a new trial unless it affirmatively appears from the record that it was filed within four days.

3. Where a bill of exceptions is not preserved to the overruling of a motion for a new trial, the court can only review the record proper.

4. Where the record shows the final discharge of the jury on a certain day, it cannot be overturned by the unsupported affidavit of a juror that the court discharged the jury on an earlier day.

5. Under Kansas City Charter 1889, art. 8, § 5, relating to notice of publication in condemnation proceedings, a publication notifying both those whose property may be taken and those whose property is liable to be assessed with benefits, cannot be challenged as not due process of law on the ground that it does not notify the property owners in the benefit district that all the lands in the district are or will be benefited, or that a judgment for any specific sum will be rendered.

6. Kansas City Charter 1889, art. 10, § 16, providing for the setting aside of the jury's verdict in a condemnation proceeding on motion filed within four days, violates no provision of the constitution in restricting the time within which the motion must be presented.

7. Kansas City Charter 1889, creating a park board to devise a system of parks, and imposing a limitation on the council, in that it cannot act without a prior recommendation of the board, but conferring no power on the board to legislate, is not repugnant to Const. art. 9, §§ 16, 17, as creating a third house of legislature in such board, and delegating legislative powers belonging to the council.

8. Where, in a proceeding to condemn a parkway pursuant to Kansas City Charter 1889, authorizing the park board to devise a system of parks, the record recites that the board caused the petition to be filed, and no exceptions to the evidence by which that fact appeared to the court have been preserved, an objection that the petition did not contain an averment that the park board had filed it or caused it to be filed is without merit.

9. Where the publication of a notice in a condemnation proceeding by Kansas City is made in a newspaper which does the city printing, and there is no evidence that such paper is not the paper which had contracted with the circuit court judges to publish the orders of publication, its sufficiency to confer jurisdiction cannot be questioned on the ground that it does not recite that the newspaper was under contract with the circuit court judges to publish all the notices, as required by Rev. St. 1899, § 4692.

10. The publication of a notice in a condemnation proceeding in a newspaper doing the city printing, as required by Kansas City Charter June 6, 1895, art. 10, § 11, requiring notice to the property owners to be so published, is sufficient to confer jurisdiction, though such paper is not under contract with the circuit court judges for the publication of all notices as required by Rev. St. 1899, § 4692.

11. Under Kansas City Charter, art. 10, § 5, conferring on the park board the power and duty of devising a system of parks, and article 7, § 1, giving the city general authority to establish parks, a proceeding to establish a parkway cannot be adjudged invalid because there is no statement in the ordinance that the park board has devised a system of parks, since, in the absence of a provision that such step shall constitute a condition precedent to the acquisition of a parkway by condemnation, it is not a jurisdictional fact necessary to be stated in the petition or ordinance.

12. Where the method of proceeding for the establishment of a parkway is discretionary with the council, it is not essential to the validity of the ordinance that it recite that the council deemed it best to acquire the land by condemnation.

13. Where, in a condemnation of a parkway extending across a railway company's right of way and under its tracks, the jury finds that the railway company suffers no damages by the extension, and allows it nothing, and thereupon the railway company and the city enter into an agreement whereby the former conveys to the latter the absolute use of certain realty, on condition that the city will not interfere

with its embankments, and such agreement does not impair the value of the improvement as a whole, landowners who are charged with benefits by the improvement cannot complain of such agreement on the ground that it reduced the amount of the lands condemned below that ordered to be taken by the ordinance.

Burgess, C. J., and Sherwood, J., dissenting in part.

In banc. Appeal from circuit court, Jackson county; J. H. Slover, Judge.

Condemnation proceedings by Kansas City for the establishment of a public parkway, in which certain realty of Thomas H. Mastin and Julia Mastin was assessed for benefits, and they appeal. Affirmed.

R. H. Field, for appellants. R. E. Ball and C. S. Palmer, for respondent.

GANTT, J.

This is an appeal from a judgment of the circuit court of Jackson county rendered on the 14th day of September, 1901, in the matter of the condemnation of land for opening and establishing a public parkway in the South park district in Kansas City, Mo., known as the "Paseo Extension," under ordinance of Kansas City, Mo., No. 13,067, approved the 3d day of October, A. D. 1899, and entitled "An ordinance to open and establish a public parkway in the South park district in Kansas City, Missouri." The appeal herein was taken on October 4, 1901. The appellants, previous to October 4, 1901, never appeared to the proceeding either in person or by attorney. No property of theirs was taken or damaged, but certain of their real estate was assessed with benefits.

1. Preliminary to any discussion of the propositions advanced by appellants, it is proper to call attention to the fact that, as appellants failed to file their motions for a new trial within the four days required by the charter provisions under which these condemnation proceedings were had, the action of the circuit court in overruling that motion was justified on the ground that it was out of time, if for no other reason, and it must be treated as if no such motion had been filed. While the trial court may, of its own motion, grant a new trial at any time during the term at which a verdict is rendered, or may do so upon the application of either party for good cause shown, it has been uniformly ruled since the case of Allen v. Brown, 5 Mo. 323, that a refusal to grant a new trial on a motion for that purpose filed after four days is not error; and it has also been held that, unless the record shows affirmatively that the motion was filed within the four days after the trial, this court will not review the exceptions presented in such motion. Moran v. January, 52 Mo. 523; Welsh v. City of St. Louis, 73 Mo. 73, and cases cited; Maloney v. Railway Co., 122 Mo. 106, 26 S. W. 702; Bollinger v. Carrier, 79 Mo. 318; City of St. Joseph v. Robison, 125 Mo. 1, 28 S. W. 166. Equally well settled is the rule that, unless an exception be taken and preserved by bill of exceptions to the action of the court in overruling a motion for new trial, there is nothing before the appellate court for review save and except the record proper. Ross v. Railroad Co., 141 Mo. 395, 38 S. W. 926, 42 S. W. 957, and cases cited. As section 16 of article 10 of the charter of Kansas City, adopted in 1889, provides that the verdict of the jury may be set aside "on the motion of any party interested in the proceedings, filed within four days after the rendition of the verdict for good cause," it is not only "in harmony with the laws of this state," but is an almost literal rescript of the Code of Civil Practice on that subject. Section 803, Rev. St. 1899. While this court has sustained the constitutionality of the charter provision under consideration, and held that the charter might have prescribed a different mode of procedure, so long as the fundamental principles of due and just compensation and an opportunity to be heard is afforded the landowner (State v. Field, 99 Mo. 352, 12 S. W. 802; Kansas City v. Marsh Oil Co., 140 Mo. 458, 41 S. W. 943; Same v. Bacon, 147 Mo. 272, 273, 48 S. W. 860), in this case the charter tracks the general Civil Code, and there can be no pretense that it violates section 16 of article 9 of the constitution in any way. It follows that we have nothing for review but the record proper on this appeal.

2. The two motions to correct the record were overruled by the circuit court. The point involved in these motions is that the circuit court discharged the jury before it finally reviewed their verdict as required by the charter. As the record of the court stood, the matter of the motions was contradicted by the record proper, and their purpose was to get rid of the recitals of the record. To do this, the affidavit of one of the jurors was read to show that he heard the judge discharge the jury on June 8th, whereas the record shows they were not finally discharged until September 14th. This presented a question of fact to the circuit court as to the truth of its own record, and it found against the appellants, and every presumption must be and will be indulged that its finding was justified, and will not be overturned by the unsupported affidavit of one juror, who, however honest he may have been, might well have misunderstood the order of the court....