Quincy, Missouri & Pacific R.R. Co. v. Kellogg

• Decision Date: 31 October 1873
• Citation: 54 Mo. 334
• Parties: THE QUINCY, MISSOURI AND PACIFIC RAILROAD CO., Appellant, v. WARREN J. KELLOGG, et al., Respondents.
• Court: Missouri Supreme Court

54 Mo. 334

THE QUINCY, MISSOURI AND PACIFIC RAILROAD CO., Appellant,

v.WARREN J. KELLOGG, et al., Respondents.

Supreme Court of Missouri.

October Term, 1873.

Appeal from Adair Circuit Court.

James M. De France, for Appellant.

I. The proceedings for condemnation of the land were according to the statute.

II. The authorities cited by respondent have no application here.

Ellison & Ellison, for Respondents.

I. The respondent, being a non-resident, was improperly joined in the same petition with other non-resident and resident defendants. (Wagn. Stat., 328, § 5.)

II. The petition and order of publication and report should have described the land “which the Company seeks to acquire” by describing it exactly; as described, the appellant can shift its course and do respondent great injury. (Wagn. Stat., 326, § 1; 22 Ill., 399, which explains what the description should be.)

VORIES, Judge, delivered the opinion of the court.

This was a proceeding commenced by the plaintiff, in the Adair Circuit Court, under the fifth article of the statute of this State concerning corporations, for the purpose of condemning or appropriating lands for the road-bed of a railroad to be constructed by plaintiff.

The proceeding was commenced against defendant Kellogg, and between fifteen or twenty other defendants; all of whom resided in the County, or Circuit, where the proceeding was commenced, but said defendant, Kellogg, and two others, who were non-residents of the State. The resident defendants were personally served by summons, and publication made against the non-resident defendants. At the time fixed for the appearance of the parties the plaintiff appeared, and the court not then having time to hear the case, the hearing was postponed for three days, at which time the petition was heard, and commissioners appointed to view the land proposed to be taken by the plaintiff, and assess the damages to the several defendants through whose land the road had been located, the defendant Kellogg having made no appearance.

The commissioners afterwards viewed the different tracts of land proposed to be appropriated by the plaintiff, and made and filed their report, in which they assessed damages to defendant Kellogg to the amount of sixty-two dollars.

The defendant Kellogg appeared after the filing of this report for the first time, and filed his exceptions to the report, which were as follows:

1st. That he had not been lawfully or properly, notified of the application or petition to be made for the appointment of the commissioners: 2nd. Because none of the allegations in the petition had been proven or proof thereof waived: 3rd. Because the commissioners were not appointed on the day that the defendants were notified to appear: 4th. No instructions were given the commissioners in the order appointing them as to their duties under the law: 5th. Because the compensation given by the commissioners was not just or sufficient: 6th. The land appropriated is not sufficiently described: 7th. The petition and proceedings unlawfully joined resident and nonresident defendants in the same proceeding contrary to the laws of the State.

The court, upon a hearing of these objections, set aside the report of the commissioners, and dismissed the proceedings as to said Kellogg; to this action of the court, the plaintiff excepted, and has brought the case to this court by appeal.

The only points discussed by the parties in this court are as to the sufficiency of the petition and the publication made against the...