Leavenworth Terminal Railway & Bridge Co. v. Atchison

• Citation: 137 Mo. 218,37 S.W. 913
• Parties: LEAVENWORTH TERMINAL RAILWAY & BRIDGE CO. v. ATCHISON.
• Decision Date: 01 December 1896
• Court: United States State Supreme Court of Missouri

37 S.W. 913

137 Mo. 218

LEAVENWORTH TERMINAL RAILWAY & BRIDGE CO. v. ATCHISON.

Supreme Court of Missouri, Division No. 1.

December 1, 1896.

APPEAL — OBJECTIONS NOT RAISED BELOW — JURISDICTION — EMINENT DOMAIN — RIGHT TO JURY TRIAL — WAIVER — EXCEPTION TO COMMISSIONERS' REPORT — NOTICE OF FILING REPORT — SUFFICIENCY OF REPORT — FINALITY — AMENDMENT OF PETITION.

1. In condemnation proceedings the defendant raised for the first time on appeal an objection to the jurisdiction, as the land in controversy was situated in Kansas, and not in Missouri. From the record it appeared affirmatively that the land was in Missouri. Held that, as the objection raised an issue of fact as an original question, and not as error, it could not be considered.

2. In condemnation proceedings the right of the landowner to have his damages assessed by a jury will, in the absence of a demand therefor, be deemed waived.

3. Under Rev. St. 1889, § 2738, providing that in condemnation proceedings exceptions to the report of the commissioners must be filed within 10 days after service of notice of the filing of such report, a demand for a jury for the assessment of damages must be made within 10 days after service of the notice of the filing of the commissioners' report.

4. Under Rev. St. 1889, § 2738, providing that upon the filing of the report of the commissioners in proceedings for the condemnation of lands the clerk of the court shall notify the party whose property is affected, it is sufficient, where neither the landowner nor his attorney are residents of the state, to post such notice in the clerk's office, as provided in Rev. St. § 2034. Railway Co. v. Swan, 25 S. W. 534, 120 Mo. 30, followed.

5. Under Rev. St. 1889, § 2738, providing that notice shall be given of the filing of the report of the commissioners in condemnation proceedings, it is not necessary that the notice should set out the facts reported by the commissioners.

6. Such notice is sufficient if it states merely the fact that the report of the commissioners has been filed.

7. An order setting aside a report of the commissioners in condemnation proceedings is not a final judgment over which the court loses control by the expiration of the term at which it was made.

8. Where it is assigned as error that the plaintiff in condemnation proceedings was permitted to amend his petition "by interlining an alteration in the description of the land sought to be condemned," it will be presumed, in the absence of anything to show the contrary, that the alteration was merely for the purpose of describing the land more precisely.

Appeal from circuit court, Platte county; W. S. Herndon, Judge.

Suit by the Leavenworth Terminal Railway & Bridge Company to condemn certain lands belonging to David Atchison. From an order approving the report of the commissioners and setting aside an order for jury trial, the defendant appeals. Affirmed.

John Doniphan, H. J. Gillpatrick, and A. D. Burnes, for appellant. J. W. Coburn, for respondent.

MACFARLANE, J.

This proceeding was commenced in the circuit court of Platte county, in vacation, the object of which was to condemn portions of defendant's land for a railroad and the approaches to a bridge over the Missouri river, which was then in course of construction by plaintiff. The petition was filed on the 29th day of November, 1892, and publication of notice to defendant, who was a nonresident of this state, was ordered. Notice was duly published, and on the 24th day of December, 1892, plaintiff applied to the judge of said court in vacation for the appointment of commissioners to assess defendant's damages. The application was continued by the judge to the April term, 1893, of said court, by an order duly entered of record. At the April term, 1893, commissioners were appointed by the court, who made report on the 17th of said month, assessing the damage of defendant at $225. On the same day, viz. April 17, 1893, the clerk of said court posted in his office a notice, which, after giving the style of the case, was as follows: "To Said Defendant, David Atchison: You are hereby notified that the commissioners appointed by the court to assess the damages which you may sustain by reason of the appropriation of your property by said plaintiff for the purpose mentioned in its petition did, on the 17th day of April, 1893, file and report all their proceedings as such commissioners." No further order in said cause was made at that term of court. At the August term of said court, and on the 26th of August, 1893, defendant filed his motion praying the court to set aside the report of the commissioners, and award him a trial by jury of the damage he would sustain on account of the appropriation of his land. The grounds of this motion, as appeared from the affidavit in support of it, were that he had no knowledge of the proceeding, and that his damage would be largely in excess of that awarded him by the commissioners. Upon a hearing at the August term the motion was sustained, and the cause was continued for a jury trial to the December term. At the December term of court plaintiff filed a motion to set aside the order of the August term, and to approve the report of commissioners, which was sustained, the order awarding a jury trial was set aside, and the report of commissioners was approved and confirmed. Defendant filed a motion for a rehearing, assigning several grounds therefor, which, being overruled, he appealed.

1. Defendant raises, for the first time in this court, a question of jurisdiction. It appears from copies of plats filed in this court that the land affected by the condemnation was originally an island in the Missouri river, lying between the town of Leavenworth, Kan., on the west bank of the river, and the town of Weston, on the east bank of the river, in the state of Missouri, and known as "Leavenworth Island." Defendant insists that the land attempted to be appropriated by this proceeding lies in the state of Kansas, and the circuit court of Platte county, in the state of Missouri, therefore had no jurisdiction to condemn it. The question was not raised or determined by the circuit court. There is nothing upon the record which even suggests the jurisdictional question. The land is described throughout the proceedings as being situate in the state of Missouri. None of the motions filed by defendant in the circuit court called in question the jurisdiction of that court on account of the location of the land. It is true that a question of the jurisdiction of a court of the general subject-matter of a suit can be raised at any stage of the proceeding, even for the first time in an appellate court. It cannot be waived, and its consideration does not depend upon whether or not it was directly passed upon by the trial court, or whether assigned as error. Indeed, if the trial court had no general jurisdiction of the subject-matter, the appellate court could acquire none; and it certainly has the right at any time to determine its own jurisdiction. But a court may have the general right to decide a particular class of cases, and, at the same time, no right to decide a particular case of that class. The circuit court of Platte county has general jurisdiction in condemnation proceedings, but it has no power to condemn land situated in the state of Kansas. If the record showed on its face that the land was in the state of Kansas, this court would set aside the judgment of the circuit court, whether the question was raised in that court or not. But, on the contrary, this record shows that the land condemned is located in Platte county, Mo. The jurisdiction of the court therefore affirmatively appears.

Defendant, for the first time in this court, thus presents an issuable question of fact, involving a determination of the division line between two states, and asks this court to hear evidence, and pass upon it, as an original question, and not as an error of the trial court. Counsel admit that they are able to find no precedent in this state for such practice. They attempt to justify the practice upon the principle, before...