Musick v. The Kansas City, Springfield & Memphis Railroad Company

• Decision Date: 12 November 1894
• Citation: 28 S.W. 72,124 Mo. 544
• Parties: Musick, Administrator, Appellant, v. The Kansas City, Springfield & Memphis Railroad Company
• Court: Missouri Supreme Court

28 S.W. 72

124 Mo. 544

Musick, Administrator, Appellant, v. The Kansas City, Springfield & Memphis Railroad Company

Supreme Court of Missouri, First Division

November 12, 1894

Appeal from Greene Circuit Court. -- Hon. J. T. Neville, Judge.

Affirmed.

White & McCammon and Thomas H. Musick for appellant.

(1) Statutes authorizing the exercise of eminent domain are subject to a strict construction, and their requirements must be strictly complied with. Ellis v. Railroad, 51 Mo 200; Cunningham v. Railroad, 61 Mo. 33; Railroad v. Campbell, 62 Mo. 585; Rogers v. St. Charles, 3 Mo.App. 41; Blize v. Castlio, 8 Mo.App. 290; Anderson v. Pemberton, 89 Mo. 61; Hopkins v Railroad, 79 Mo. 98; Leslie v. St. Louis, 47 Mo. 474. (2) The jurisdiction of inferior courts must appear from the record. Jefferson Co. v. Cowan, 54 Mo. 234; Cunningham v. Railroad, 61 Mo. 33; Gibson v Vaughan, 61 Mo. 418; Haggard v. Railroad, 63 Mo. 302; Fisher v. Davis, 27 Mo.App. 321. (3) Even where courts of general jurisdiction exercise special and limited statutory powers, the record must show every fact necessary to their jurisdiction. McCoy v. Zane, 65 Mo. 11; Werz v. Werz, 11 Mo.App. 26; Sedalia v. Railroad, 17 Mo.App. 105. (4) Defendant's answer should show territorial jurisdiction in the justice, but instead of doing so that part of plaintiff's replication setting up want of territorial jurisdiction was stricken out. (5) Section 6126, Revised Statutes, 1889, limits territorial jurisdiction of justices to the townships in which defendants reside and to adjoining townships. (6) Section 2566, Revised Statutes, 1889, confers jurisdiction of subjectmatter upon justices of the peace as a class of judicial officers and does not attempt to repeal section 6126, or to enlarge the territorial jurisdiction of justices of the peace. State v. Heath, 56 Mo. 531. (7) Payment is necessary before entry. Walther v. Warner, 25 Mo. 277; Railroad v. Applegate, 33 Am. Dec. 497; Bloodgood v. Railroad, 31 Am. Dec. 313. (8) A payment in draft or check is not a statutory payment, unless received as such. Bank v. Wakeman, 1 Cow. 46; People ex rel. v. Baker, 20 Wend. 602; Munford v. Armstrong, 4 Cow. 553; Burnett v. Smith, 64 Am. Dec. 290.

Wallace Pratt and J. C. Cravens for respondent.

(1) The cause having been tried and determined at the May term, 1893, and no bill of exceptions having been filed until about the close of the next succeeding September term, viz., on the fourteenth day of December, 1893, and long after the lapse of the time allowed by the court or consent of the defendant for such filing -- the judgment of the circuit court has become a sealed book which this court has now no jurisdiction to look into on appeal, further than the record proper. State v. Britt, 117 Mo. 584; State v. Seaton, 106 Mo. 198; State v. Mosely, 116 Mo. 545; State v. Apperson, 115 Mo. 470; State v. Harben, 105 Mo. 603; State v. Berry, 103 Mo. 367; State v. Hill, 98 Mo. 570; State v. Scott, 113 Mo. 559; Mentzing v. Railroad, 64 Mo. 25. (2) If it were competent for this court on this appeal to look into the proceedings of the circuit court ending in the judgment here complained of, it would be found that every question (save one) now raised by appellant was presented and insisted upon in the former hearing of this cause on appeal, and there decided against appellant's contention. Musick v. Railroad, 114 Mo. 309; Cunningham v. Railroad, 61 Mo. 33; Ellis v. Railroad, 51 Mo. 200; Campbell v. Railroad, 62 Mo. 585; Cory v. Railroad, 100 Mo. 282.

OPINION

Macfarlane, J.

This is a second appeal in this case. The opinion in the former appeal is reported in 114 Mo. 309, 21 S.W. 491.

The action is trespass upon real estate of plaintiff's testator, situate in Wright county. Defendant pleaded a right to the possession of the land under proceedings before a justice of the peace of said county, by which a right to the use of the land was adjudged for the purpose of constructing a reservoir thereon. The reply put in issue the sufficiency of the proceedings to secure the alleged right. There was a trial of the issues which resulted in a verdict and judgment for defendant, and plaintiff appealed.

The judgment was rendered on the twenty-second day of June, 1893. The appeal was allowed at the same term and on the twenty-seventh of June, at which time leave was granted plaintiff to file a bill of exceptions within ninety days thereafter. The bill of exceptions was filed at the September term of said court, 1893, and on the fourteenth day of December of that year. On the sixteenth of December, the following record entry was made:

"Now at this day comes the plaintiff by attorney and files herein his motion praying the court to make an order granting him leave to file his bill of exceptions, in the above entitled cause, as of October 25, 1893. And all and singular the premises being seen, heard and fully understood, the court doth sustain said motion. Whereupon it is ordered by the court that said bill of exceptions, which by agreement should have been filed on or before October 25, 1893, be and the same is hereby filed and made a part of the record in this cause. It is further ordered that the agreement made by said parties as to the time of filing the bill of exceptions be and the same is hereby made a part of the record in the above entitled cause."

The agreement is copied into the record and is as follows:

"It is hereby agreed that bill of exceptions may be filed in the above entitled cause at any time before October 25, 1893.

"(Signed)

"J. C. Cravens,

"Attorney for Defendant."

An affidavit in support of the motion for a nunc pro tunc filing of the bill of exceptions is copied into the record. The substance of this affidavit is to the effect that in pursuance of the agreement on the twenty-third day of October, 1893, counsel for plaintiff delivered to counsel for defendant, for his examination, a completed bill of exceptions, but that said counsel "retained said bill of exceptions in his possession and failed and neglected to examine and approve the same, though often requested so to do, and to deliver the same to plaintiff's attorney, until the eighteenth day of November, 1893."

Defendant's counsel now objects to the sufficiency of the bill of exceptions, and to the consideration of any assigned error that does not appear upon the record proper.

I. Without considering the powers the circuit courts may possess, in respect to enforcing and making effectual, by subsequent orders, agreements of this character made by counsel in vacation, it is a cardinal principle which is well settled by authority that no such order made at a term subsequent to the final disposition of the case could have any force or validity unless the opposite party had notice thereof, and an opportunity to be heard. Henze v. Railroad, 71 Mo. 636; George v. Middough, 62 Mo. 549; Laughlin v. Fairbanks, 8 Mo. 367.

It does not appear from the record entry before us, or otherwise, that defendant had notice of the intended application for the order made. Whatever the power of the court to make the order, it certainly could not bind defendant by a purely ex parte proceeding. The order must be held to have no binding force or effect.

While the affidavit supporting the motion can be regarded merely as the evidence upon which the court presumably acted, and is no part of the record which we can properly consider, still looking to it we find no facts stated which could authorize the order. It does not appear that plaintiff demanded of defendant's counsel the return of the bill of exceptions within the time in which it could have been filed under the stipulation. It was the duty of the defendant's counsel to file the bill in time, or secure an extension under the liberal provisions of the statute. The duty of diligence was on him, and he could not shift it to the opposing counsel, so as to relieve himself of the...