Quincy & Palmyra R.R. Co. v. Taylor

• Decision Date: 31 October 1868
• Citation: 43 Mo. 35
• Parties: QUINCY AND PALMYRA RAILROAD COMPANY, Appellant, v. JOHN TAYLOR, Respondent.
• Court: Missouri Supreme Court

43 Mo. 35

QUINCY AND PALMYRA RAILROAD COMPANY, Appellant,

v.JOHN TAYLOR, Respondent.

Supreme Court of Missouri.

October Term, 1868.

Appeal from Hannibal Court of Common Pleas.

James Carr, for appellant.

I. The court had no jurisdiction over the subject matter of the respondent's motion. The report of the commissioners was filed with the clerk of the Circuit Court on the 8th day of January, 1868; the respondent filed no written exceptions to it within ten days, as required by the statute. (Gen. Stat. 1865, ch. 66, p. 353.) The Circuit Court of Marion county had no jurisdiction. The cause was coram non judice, and hence its judgment dismissing the proceedings was null and void. (Visscher v. Hudson River R.R. Co., 15 Barb. 37; New York Central R.R. Co. v. Marion, 11 N. Y. 276; Hann. & St. Jo. R.R. Co. v. Morton, 20 Mo. 70; Williams v. Hartford & New Haven R.R. Co., 13 Conn. 110; In the matter of Negus, 10 Wend. 34.) Consent of parties cannot confer jurisdiction. (Baker, Adm'r of Lindell, v. Hann. & St. Jo. R.R. Co., 36 Mo. 543.) The proceeding in this case is entirely statutory. It is a special proceeding, and must stand or fall according as it shows a strict compliance with, or failure to comply with, the provisions of the statute. If it had been a suit in a court proceeding according to the rules of the common law, the court having jurisdiction over the parties and subject matter, error in judgment and irregularities in conducting the proceedings would not vitiate the judgment rendered in the cause, unless it had been reversed on appeal or writ of error. (Voorhees v. The Bank of the United States, 10 Pet. 450.) But there is no provision for reviewing the proceedings on appeal or writ of error, as there is in a common-law court. The proceeding can only be reviewed in pursuance of section 4, chapter 66, already cited, by filing, within ten days after filing such report in the clerk's office, written exceptions. In that event the court is authorized to make such order therein as right and justice may require, and may order a new appraisement upon good cause shown. Expressio unius est exclusio alterius. The evident implication, then, is that the report of the commissioners cannot be reviewed by the court in which the proceedings are had, when there has been a failure to file such written exceptions within ten days after filing the report of the commissioners. The respondent having failed to file any written exceptions until long after the time prescribed, the court had no jurisdiction over either the parties or the subject matter. The motion made by the respondent was coram non judice, and the decision of the court thereon a clear case of usurpation; hence, null and void. This proceeding could be brought up by a writ of certiorari if the fourth section had not authorized written exceptions to be filed within ten days after the filing of the report of the commissioners. That section affords a complete remedy. That remedy is exclusive. No other remedy can be pursued. (Lindell's Adm'r v. Hann. & St. Jo. R.R. Co., 36 Mo. 543; and authorities cited.) It follows, then, that, whether voidable or void, the court below had no jurisdiction.

II. But if the court shall be of opinion that the Circuit Court had jurisdiction over the subject matter of the motion filed by the respondent, then it is affirmed that the substance of the petition is recited in the notice published in this case, as required by the second section of the chapter already cited. (Gen. Stat. 1865, p. 352; Sloan v. Force, 11 Mo. 126; 20 Mo. 70.) The whole proceeding is either valid or void. If the substance of the petition presented to the judge of the Sixteenth Judicial Circuit is recited in the notice, then the proceeding is valid. The evident intention of the statute is to require the railroad company seeking to condemn the right of way over the land of an individual to publish facts enough to apprise him of the fact that the railroad of such company has been located over his land, and that it intends to apply to the judge of the Circuit Court to appoint commissioners to view and assess the damages which he will sustain from the erection and maintenance of such railroad over his land. If it does this, such individual has information enough to put him upon inquiry, and the notice is a sufficient compliance with the statute. (Dougherty v. The Summerville & Easton R.R. Co., 1 Zabr. 443; 21 Ill. 399; Epley v. Witheron, 7 Watts, 163; 19 Ill. 486.)

Anderson & Lipscomb, Dryden & Lindley, for respondent.

WAGNER, Judge, delivered the opinion of the court.

A preliminary question is raised in this case by the counsel for the respondent, who has filed a motion to dismiss the appeal, because the decision of the District Court affirming the decision of the Circuit Court was not excepted to by the appellant, nor any exceptions preserved in the District Court. The motion is based upon the assumption that, in order to enable this court to take cognizance of a cause, the decision of the District Court must be excepted to, and exceptions regularly saved, in the same manner as in cases coming up from the Circuit Court to an appellate tribunal.

No provision in the statute has been cited or referred to justifying or sustaining this position; and, after a careful examination, we have not been able to find any. The section of the constitution providing for the establishment and organization of the District Courts declares that they shall, within their respective districts, have like original jurisdiction with the Supreme Court, and appellate jurisdiction from the final judgments of the Circuit Courts, and of all inferior courts of record within the district except Probate and County Courts; and that, after the establishment of such District Courts, no appeal or writ of error shall lie from any Circuit Court or inferior court of record to the Supreme Court, but shall be prosecuted to the District Court, from the final judgment of which an appeal or writ of error may be taken to the Supreme Court, in such cases as may be provided by law. The only provision in the statutes relating to the question is in the practice act, chap. 169, § 27, which says that whenever, in the progress of any trial in any civil suit pending in any court of record, either party shall except to the opinion of the court, and shall write his exception, the court shall allow and sign the same.

The subsequent sections make provision for the party obtaining his exceptions in case the judge refuses to sign the same. These sections relate exclusively to the practice and proceedings in the Circuit Courts, and have no reference to the District Courts. The law authorizes parties to bring cases from the District Courts to this court either by appeal or writ of error, but that exceptions should be saved would only be required by resorting to an act of judicial legislation.

In the absence of any direct statutory requirement, there is no apparent reason why the party should be compelled to except in the District Court. The whole record from the Circuit Court, with the points regularly saved, is before that court for revision; they are an appellate tribunal; and, if their opinion is objectionable or unsatisfactory, the same record is brought...