Kansas City v. Mulkey

• Decision Date: 30 June 1903
• Citation: 75 S.W. 973,176 Mo. 229
• Parties: KANSAS CITY v. MULKEY et al., Appellants
• Court: Missouri Supreme Court

75 S.W. 973

176 Mo. 229

KANSAS CITY v. MULKEY et al., Appellants

Supreme Court of Missouri

June 30, 1903

Appeal from Jackson Circuit Court. -- Hon. Jas. Gibson, Judge.

Affirmed.

Gage Ladd & Small for appellants.

(1) (a) The reversal and remanding of the first condemnation case by this court and the subsequent dismissal thereof by the city in the circuit court, was all done after the passage of the ordinance repealing the ordinance upon which said first proceedings were based, and directing the dismissal of such proceedings in the Supreme Court and in the circuit court. The order of this court reversing and remanding the case is made pursuant to a stipulation between the city and Bacon and Munroe, as appears on the face thereof, and the stipulation refers to said repealing ordinance for its authority to the city counselor for his action in the premises. The repealing ordinance does not authorize the city counselor to consent to an order in this court reversing and remanding said cause but to dismiss the same. The repealing ordinance, the stipulation and the order of this court in the premises, and the order of the circuit court in dismissing said cause, must all be construed together, and when this is done it is clear that the effect of it all was simply to dismiss or discontinue the first proceeding as directed by said repealing ordinance. (b) Furthermore, the repeal of the ordinance upon which the first proceedings were based, by the express terms of the city charter, section 19, article 10, made the first proceedings void. Consequently nothing further could be done therein except to strike the case from the docket of this court and of the circuit court. (c) Besides, it has been decided by this court that a valid ordinance is a jurisdictional requirement in a condemnation proceeding. St. Louis v. Gleason, 89 Mo. 67; Abernathy v. Moore, 83 Mo. 65. It follows from this that, after the ordinance upon which the first procedings were based, was repealed, all further proceedings in any court, except to strike the case from the docket, were without jurisdiction and void. In fact, after that ordinance was repealed, there was no such case in court. (d) But even if the first proceeding had been reversed and remanded by agreement of the city and appellants Bacon and Munroe before the repealing ordinance was passed, such reversal would not have been binding upon the Mulkeys and the other parties in interest, because the charter contemplates that the verdict shall stand unless reversed for some error found in the record by the Supreme Court, and the reversal by agreement was not an adjudication of any error. But the reversal by agreement being made after this court was deprived of jurisdiction by the repeal of the ordinance which authorized the proceedings, the signing of the stipulation by Bacon and Munroe, does show that they agreed to the repealing ordinance and were willing to co-operate with the city in carrying out its provisions, which were to dismiss the proceedings in the Supreme Court -- that is, dismiss their appeal, no longer prosecute it -- for the purpose of enabling the city to re-commence the proceedings, as was done. Hence the propositions we make on this appeal as to the force and effect of the first verdict must be viewed simply as if the first case were discontinued or stricken from the docket of this court and the circuit court upon the passage of the repealing ordinance of April 5, 1899, and not as if said first proceedings had simply been reversed and remanded in the ordinary course for error found by this court. (2) To permit the public to adhere to its purpose to take a man's property, but to disregard the final verdict in such a proceeding of its own motion and immediately commence new proceedings, as was done here, would destroy the judicial character of such proceedings, for two reasons: First. It would render them binding upon one party only, whereas, the primary object and fundamental characteristic of a judicial proceeding is that it results in an adjudication which is binding upon both parties to the cause. Second. It would practically be making the public a judge in its own cause by enabling it to dismiss, reinstitute and prosecute as many such proceedings as it saw fit, until it got a verdict sufficiently low to meet its own idea of just compensation; that is, to ultimately take the citizen's property at its own price, after harassing him with an unlimited number of lawsuits and tying his property up for an unlimited time, as its pleasure or caprice might dictate. (3) It is a well-settled principle that, when the merits of a controversy have once been fully passed on by a court of competent jurisdiction, it is not open to inquiry between the same parties or privies in any other suit or proceeding. Spradling v. Conway, 51 Mo. 54; Bell v. Hagland, 15 Mo. 360; Clemens v. Murphy, 40 Mo. 121; Wright v. Salisbury, 46 Mo. 26; Wills v. Moore, 49 Mo. 229. (4) While the city may in good faith, abandon one condemnation proceeding and institute another, still, if the abandonment of the first proceeding is not in good faith, that is, not really an abandonment, the city will be estopped in the second proceeding to take the property for a less valuation than was fixed by the verdict in the first proceeding. Rogers v. St. Charles, 3 Mo.App. 41; St. Joe v. Hamilton, 43 Mo. 282; Dillon on Mun. Corp. (4 Ed.), sec 608; Mills, Em. Domain (2 Ed.), sec. 315; State ex rel. v. Keokuk, 9 Ia. 439; Hupert v. Anderson, 35 Ia. 578; Stafford v. Mayor, 7 Johns. (N. Y.) 541; Comm'rs Wash. Park, 56 N.Y. 144; Neal v. Railroad, 2 Grant's Cases (Pa.) 137; Drath v. Railroad, 15 Neb. 367; Chicago v. Railroad, 143 Ill. 641, 32 N.E. 178; Railroad v. City, 148 Ill. 479, 36 N.E. 72; Railroad v. City, 163 Ill. 524, 45 N.E. 120; District Columbia v. Cemetery, 5 App. Cases (D. C.) 497; Schneider v. Rochester, 29 N.Y.S. 1005; Cincinnati v. Hott, 5 Ohio N. P. 418. (5) If, notwithstanding the first proceeeding be dismissed, the city adheres to its purpose to take the particular property for the same purpose, and immediately institutes new proceedings, the abandonment will be held to be merely colorable and not in good faith, that is, no abandonment at all. Rogers v. St. Charles, 3 Mo.App. 41; Chicago v. Railroad, 32 N.E. 178; Railroad v. City, 36 N.E. 72; District v. Cemetery, 5 App. Cases (D. C.) 497; Cincinnati v. Hott, 5 Ohio, N. P. 418. (6) The question raised by appellants was presented by answer or plea, and this is proper. Lewis, Eminent Domain, sec. 390; Railroad v. Railroad, 94 Mo. 543. (7) In fact, res adjudicata may be shown in evidence, under a general denial. Therefore, appellants' offer to prove the judgment and verdict in the original proceeding also was proper. Offutt v. John, 8 Mo. 120; Wood v. Ensel, 63 Mo. 194; Strong v. Ins. Co., 62 Mo. 289.

R. E. Ball and D. J. Haff for respondent.

(1) The proceeding for the condemnation of land for park purposes in Kansas City, which governs the case at bar, is a special one and is covered entirely by the special provisions of the charter relating to condemnation and appropriation of land for park purposes. These charter provisions are the only law of this proceeding. St. Louis v. Gleason, 15 Mo.App 30; s. c., 93 Mo. 33; State ex rel. Kansas City v. Field, 99 Mo. 352; Kansas City v. Marsh Oil Co., 140 Mo. 458; Kansas City v. Bacon, 147 Mo. 259; Kansas City v. Bacon and Munroe, 157 Mo. 450; Charter of Kansas City, art. 10. (2) The elementary principle of estoppel by judgment is the mutuality of the estoppel. "Where a matter becomes res adjudicata, it is equally obligatory on both parties; if it is not binding on both parties, it binds neither." Bell v. Hoagland, 15 Mo. 360; Hermann on Estoppel and Res Adjudicata, secs. 135-136. (3) There was no final judgment in this case and nothing upon which appellants could base the plea of res adjudicata or estoppel. The charter of Kansas City provides that when one of these proceedings is appealed the "judgment stands suspended" until the appeal is determined. It is also a fundamental principle of estoppel that the judgment appealed from with supersedeas, as was done in the case of the former proceeding of which appellant seeks to avail himself, will not, pending the appeal, support the plea of res adjudicata. Charter of Kansas City, art. 10, sec. 18; Ketchum v. Thatcher, 12 Mo.App. 185; Young v. Thrasher, 61 Mo.App. 414; Norton v. Bohart, 105 Mo. 633. (4) In this proceeding, as well as under the general rule of law in Missouri, the other defendants, although not appealing, are absolutely bound by the result of that appeal. "The court may, on its own motion, or on motion of the city, or of any party interested in the proceedings, filed within four days after the rendition of the verdict, for good cause, set aside the verdict of said jury of freeholders, and thereupon, without further notice, may appoint a new jury of freeholders to make a new appraisement or assessment." Charter of Kansas City, art. 10, sec. 16; State ex rel. v. Gill, 84 Mo 248. (5) Even without the repealing ordinance, the appellants in the first case, Bacon and the Munroes, and Kansas City, respondent, had the right to stipulate for the reversal of the judgment and a new trial, and when the case was reversed and remanded by stipulation, the former verdict and judgment was a nullity and a new trial was necessary, and on said new trial appellants would not have been entitled to stand on the previous verdict. It is an elementary principle of estoppel "that a reversal of the judgment nullifies all that has been done and leaves the parties in the same situation as to rights and remedies in regard to subject-matter of litigation as if no judgment had been rendered. It destroys the estoppel." Hermann on...