Nishnabotna Drainage District v. Campbell
| Decision Date | 06 February 1900 |
| Parties | NISHNABOTNA DRAINAGE DISTRICT v. CAMPBELL et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Atchison Circuit Court. -- Hon. C. A. Anthony, Judge.
Affirmed.
Hunt & Bailey for appellants.
(1) The court under this notice acquired no jurisdiction, either of the person or subject-matter, of this case, for the reason First, the defendants are all residents of the county of Atchison, state of Missouri, and were never personally served with said notice, but the only service attempted or relied upon, was service by publication in the Atchison County Journal. The service, as to resident defendants, is null and void. Acts of 1895, p. 213, secs. 6522, 6527, 2033, 2034 2035 and 2036, R. S. 1889; George v. Middough, 62 Mo. 549; Parker v. Johnson, 22 Mo.App. 516; Railroad v. Jones, 54 Mo.App. 529; Ryan v Kelley, 9 Mo.App. 396; Corneli v. Partridge, 3 Mo.App. 575; Morgan v. Railroad, 76 Mo. 161. Second, said notice is void to non-residents for want of the proper time. The first insertion was on August 7th, 1896, the second on August 14th, and the third and last insertion was August 21, 1896, counting time according to law there was but thirteen days' notice instead of fifteen. The petition was presented on the 24th of August. The last insertion was three days before it was presented to the court in chambers, instead of fifteen days as the law requires. R. S. 1889, sec. 6570; Reynolds v. Railroad, 64 Mo. 70; Simers v. Schrader, 14 Mo.App. 346; White v. Hawthorn, 21 Mo.App. 439; Sappington v. Lenz, 52 Mo.App. 44; St. Louis v. Bambrick, 41 Mo.App. 648; State v. Harris, 121 Mo. 445. (2) The commissioners were appointed by the court in chambers on August 24, 1896, and filed their report with the clerk of the circuit court of said Atchison county on September 3, 1896. The circuit court of that county convened on the 28th day of September, 1896, the circuit clerk issued his notice according to law on September 3, 1896, and the same was served on these defendants by the sheriff of the county on the 3d day of September, 1896. (3) On the 1st day of October, it being the fifth day of the September term of said circuit court, 1896, these defendants filed their motion to quash the pretended notice given by plaintiff, of his intention to make application for the appointment of commissioners. This motion came up for hearing on the 6th day of October, 1896, and was by the court overruled. Defendants then on October 6th, filed their objections to the report of the commissioners. On the same day, October 6th, plaintiff filed motion to strike out defendants' objections, because not filed in time. On the 7th day of October, 1896, the court sustained plaintiff's motion to strike out defendants' objections, and defendants appealed. The motion of defendants to strike out the pretended notice, went to the merits of the case and no other pleading was necessary until it was disposed of, nor could objections or answer be filed until it was disposed of, for the motion was responsive to the pleading. 1 McQuillin's Plead., sec. 330; R. S. 1889, secs. 2085 and 2086; Praston v. Talmage, 87 Mo. 13; Hill v. Meyer, 47 Mo. 585; Gale v. Michi, 47 Mo. 326; Green's Mo. Prac., secs. 396 and 941; Bliss on Code Plead., sec. 420; Whittelsey's Plead., p. 305; Railroad v. Almert, 62 Mo. 343; Railroad v. Eubanks, 32 Mo.App. 184. (4) The court by its action deprived the defendants of one of their constitutional rights, viz., trial by jury. And this right is no part of exceptions. Constitution, Art. XII, sec. 4; Railroad v. Story, 96 Mo. 611; Railroad v. Cox, 41 Mo.App. 499. (5) The report of the commissioners is not in accordance with the law and is void, for the reason that it is not accompanied with any plat or profile, nor does it state how they assessed the damages, the amount of land taken, nor refer, in any way to any map, plat or profile, by which the defendants could ascertain the same. The petition is equally as faulty. R. S. 1889, sec. 6525; Railroad v. Story, 96 Mo. 611; Hannibal Bridge Co. v. Schaubucker, 57 Mo. 582; Railroad v. Ridge, 57 Mo. 599; Lee v. Railroad, 53 Mo. 178; Railroad v. Baker, 102 Mo. 553; Railroad v. Fowler, 113 Mo. 458; Railroad v. Dawbey, 50 Mo.App. 480.
Lewis & Ramsay for respondent.
(1) The notice though not strictly required by the act, was published in all the issues of the paper, from the first insertion to the day of hearing before the judge. The notice commenced on the 7th, the hearing was on the 24th, the day set in the notice, and was for seventeen days instead of thirteen as appellant asserts. German Bank v. Stumpf, 73 Mo. 311; Kellogg v. Curry, 47 Mo. 157; Railroad v. Story, 96 Mo. 620. The defendants are more perfectly and completely brought before the court by the thirty days' notice issued after the report of the commissioners is filed. R. S. 1889, 6527; Thompson v. Railroad, 110 Mo. 147. (2) Defendants' motion to quash was not an appearance to the merits, but for the purpose of the motion only. The express statement of the motion is: "Now comes the defendants and appearing specially for the purpose of this motion and this motion only and moves the court to quash the pretended notice." And defendants should not be allowed to blow both "hot and cold" to insist that they were not bound to appear because notice was insufficient, and then to insist that they had appeared to the merits and thus kept alive their rights to file objections. Hill v. Meyer, 47 Mo. 585; Huff v. Shepard, 58 Mo. 242; Tower v. Moore, 52 Mo. 118; Hollowell v. Page, 24 Mo. 590; Whittlesey's Prac., sec. 154. (3) Defendants might, perhaps, under the constitution, have demanded a right to try the question of damages by a jury, without formal exceptions. Railroad v. Randolph Town Site Co., 103 Mo. 451. Yet, in this case, they made no such request or demand, and the exceptions being filed out of time, the court had a right to disregard them. U. S. v. Reed, 56 Mo. 565; Railroad v. Eubanks, 32 Mo.App. 184; Howell v. Page, 24 Mo. 590. (4) The petition states facts to give jurisdiction, and as no issues are made, or were ever offered upon any of the jurisdictional questions, the allegations are sufficient without more formal proof. Railroad v. Randolph Town Site Co., 103 Mo. 451. The old strict rule in condemnation is much modified, presumptions of regularity are indulged in condemnation proceedings the same as in other cases. Leonard v. Shark, 117 Mo. 103; Burke v. Kansas City, 118 Mo. 309; Brand v. Cannon, 118 Mo. 595. Besides the statute provides that the proceedings shall be summary and shall "carry out liberally the purposes and needs of such drainage district." Acts 1895, pp. 213 and 214.
This is a condemnation proceeding by plaintiff, a duly organized board of Atchison county, the object of which is to condemn a right of way over and upon which to construct and maintain a drainage ditch through the lands of defendants, located in that county under the provisions of sections 6517 to 6560, Revised Statutes 1889, and amendments thereto by an act of the General Assembly of this State, entitled "An Act to amend article three, of chapter ninety-seven of the Revised Statutes of 1889, in regard to swamp and overflowed lands," approved April 9, 1895. (Laws 1895, p. 212.)
There was judgment condemning the land as prayed, from which defendants after an unsuccessful motion for a new trial appeal.
No question is raised as to the proper organization of the plaintiff, or its purposes.
The first question for consideration presented by this appeal is with respect to the sufficiency of the notice of the intended application to the court or judge in vacation for the appointment of commissioners to assess damages for the right of way. By the amendatory Act of April 9, 1895, amending article three of chapter ninety-seven, supra, it is provided that when the board of supervisors are unable to agree with the owners of any such property as to the acquisition of such right of way, or if the owners are not residents of the county, or can not be found, or are minors or persons of unsound mind, or incapable of making a legal contract, the board of supervisors, when other means are not specifically provided, may on giving fifteen days' notice in the same manner as prescribed in section 6522 of said Act, specifying the general nature of the proceedings, and the time and place of hearing, present a petition to the circuit court of the county in which the district is organized, or the judge thereof in vacation, asking for the condemnation of the right of way, and the appointment of three disinterested freeholders of such county as commissioners to assess the damages, etc. Section 6522, supra, provides that such notices shall be given by publication in some newspaper published at the county seat of the county in which such district was organized, and if there be no such newspaper, then by posting not less than six written or printed hand bills in different public places in the district.
Defendants contend that the notice was insufficient, and the court consequently without jurisdiction, there being no other notice, for several reasons which we will dispose of in the order presented. The ground for this contention is that defendants were all residents of the county, and that no provision is made by statutes in proceedings of this character for the service of notice upon residents of the county, whose lands are sought to be condemned by publication in a newspaper.
Proceedings for the purpose of taking the property of a citizen for public use being in derogation of common law and common right, must be in strict compliance with legislative enactments...
To continue reading
Request your trial