Southern Missouri & A. R. Co. v. Wyatt

• Citation: 223 Mo. 347,122 S.W. 688
• Parties: SOUTHERN MISSOURI & A. R. CO. et al. v. WYATT.
• Decision Date: 23 November 1909
• Court: Missouri Supreme Court

122 S.W. 688

223 Mo. 347

SOUTHERN MISSOURI & A. R. CO. et al. v. WYATT.

Supreme Court of Missouri, Division No. 2.

November 23, 1909.

1. COURTS (§ 231) — SUPREME COURT — JURISDICTION — TITLE TO REALTY.

An appeal in a railroad condemnation proceeding should be taken direct to the Supreme Court as involving title to realty.

2. APPEAL AND ERROR (§ 511) — RECORD — BILL OF EXCEPTIONS — FILING.

Where the record proper did not show that the bill of exceptions was filed in proper time, which appeared only from the bill itself, the bill of exceptions was not in the record, as such a bill does not prove itself.

3. APPEAL AND ERROR (§ 713) — CONTENTS — MATTERS OF RECORD.

Matters of record proper have no place in the bill of exceptions, and their recital therein adds nothing to the validity of the bill.

4. APPEAL AND ERROR (§ 554) — RECORD — REVIEW.

A judgment cannot be affirmed if the abstract shows error in the record proper.

5. EMINENT DOMAIN (§ 239) — COMMISSIONER'S REPORT — VACATION.

An order, in a railroad condemnation proceeding confirming the report of commissioners, except as to two defendants, was a sufficient order setting aside the report as to such defendants within Rev. St. 1899, § 1268 (Ann. St. 1906, p. 1040), authorizing review by the court of the report of the commissioners on exceptions, and a new appraisement by jury at the request of either party.

6. EMINENT DOMAIN (§ 239) — CONDEMNATION PROCEEDINGS — COMMISSIONERS' ORDER — VACATION.

Where a landowner in condemnation proceedings filed exceptions to a commissioners' report and asked for a jury to assess damages, he was entitled to such assessment as a matter of right without the formal vacation of the commissioners' report under Rev. St. 1899, § 1268 (Ann. St. 1906, p. 1040), providing for such reappraisement at the request of either party on the filing of written exceptions to the report.

7. TRIAL (§ 330) — SEPARATE VERDICT.

Where there are several counts in a petition, each stating separate causes of action, there should be a separate verdict on each, unless the several counts relate to the same transaction.

8. JUDGMENT (§ 266) — ARREST OF JUDGMENT — PURPOSE.

The office of a motion in arrest of judgment is to direct the attention of the court to errors apparent on the face of the record proper.

9. APPEAL AND ERROR (§ 238) — VERDICT — DEFECTS — MOTION IN ARREST.

A defect in the verdict cannot be considered on appeal, unless there was a motion in arrest assigning the defect as error.

10. EMINENT DOMAIN (§ 239) — PROCEEDINGS — GENERAL VERDICT.

A general verdict, allowing damages for the taking of two separate tracts for a railroad right of way, was not erroneous on its face.

11. EMINENT DOMAIN (§ 262) — DEFECTIVE VERDICT — REVIEW — QUESTION NOT RAISED AT TRIAL.

Where a verdict awarding damages for the taking of two separate tracts of land for a railroad right of way was not objected to at the trial by motion in arrest of judgment, because it did not make a separate award as to each tract, it could not be presumed on appeal, in the absence of a bill of exceptions, that the evidence did not show a condition which would make the verdict proper.

Appeal from Circuit Court, Ripley County; J. L. Fort, Judge.

Action by the Southern Missouri & Arkansas Railroad Company and another against J. S. Wyatt. Judgment for defendant, and plaintiffs appeal. Affirmed.

E. H. Seneff, Jas. Orchard, and W. F. Evans, for appellants. J. C. Sheppard, for respondent.

BURGESS, J.

Plaintiff the Southern Missouri & Arkansas Railroad Company instituted this suit in the circuit court of Ripley county to condemn a right of way for its railroad through the lands of a number of parties, among them the respondent, J. S. Wyatt. The latter owned two tracts of land through which said railroad company attempted to condemn a right of way, one of which, designated as "parcel No. 7," is described in the petition as the south half of the northeast quarter of section 16, township 22, range 4 east; and the other, parcel No. 9, is described as the north half of the southeast quarter and lot 1 of the southwest quarter of section 19, township 22, range 4 east. Upon the petition of the railroad company, commissioners were appointed by the circuit court to view and to assess the damages to the property through which the proposed road was to run. On the 16th day of October, 1901, the commissioners made their report, which was filed in the office of the clerk of said court, in which report they assessed the damages to tract No. 7 at $75, and assessed the damages to tract No. 9 at $49. On October 31, 1901, Wyatt filed his exceptions to the report of the commissioners, and asked that said report be set aside, and that a jury trial be awarded him, and that his damages be inquired into and assessed by a jury. After the petition was filed, and before the cause was tried, the St. Louis, Memphis & Southeastern Railroad Company was, on its motion, made a party plaintiff; it having succeeded to all the rights of the plaintiff the Southern Missouri & Arkansas Railroad Company. Wyatt recovered a verdict and judgment for $800, from which judgment, after unsuccessful motions for a new trial and in arrest, plaintiff appealed. The case for some reason found its way to the St. Louis Court of Appeals, and, after argument and submission there, an opinion was handed down by Bland, P. J., affirming the judgment on the ground that the printed abstract failed to show that the bill of exceptions had ever been made a part of the record. Thereafter a motion for a rehearing was filed, and the opinion was withdrawn, and the cause transferred to this court on the ground that the Court of Appeals had no jurisdiction of the appeal.

1. The cause was properly transferred to this court. It is a suit by a railroad company to condemn land for its right of way, and in such cases it has many times been held that appellate jurisdiction is in the Supreme Court. Title to real estate is involved in such a case. City of Tarkio v. Clark, 186 Mo., loc. cit. 294, 85 S. W. 329; Kansas City v. Railroad, 187 Mo., loc. cit. 151, 86 S. W. 190; Baubie v. Ossman, 142 Mo. 499, 44 S. W. 338; State ex rel. Railroad v. Rombauer, 124 Mo. 598, 28 S. W. 75; State ex rel. v. McCutchan, 119 Mo. App. 75, 96 S. W. 251; Railroad v. Eubank, 55 Mo. App. 335; Railroad v. McGregor, 53 Mo. App. 366.

2. We cannot consider the bill of exceptions in this case, for the reason that the printed abstract does not show that the bill was ever made a part of the record. The abstract shows that an appeal to this court was ordered on April 11, 1902, and that appellant was "given 90 days in which to perfect and file a bill of exceptions herein." Immediately following this is another record entry, which recites that on July 7, 1902, "for good cause shown, the time for filing bill of exceptions is hereby extended for a period of 60 days from the expiration of the first order." Then follows immediately the evidence of witnesses, and, after about 60 pages of testimony, immediately follow in order the instructions, the verdict, motion for new trial, motion in arrest, the affidavit for an appeal, the order allowing 90 days to file a bill of exceptions, and then a recital that on July 7, 1902, a further time of 60 days was allowed, and then a recital that appellant "presents its bill of exceptions and prays the same may be signed, sealed, and made a part of the record, which is accordingly done on this 16th day of August, 1902." Then follows the signature and approval of the judge, and the certificate of the clerk that the bill was filed on that day. It will be observed that it is only the bill of exceptions that recites that it was filed within the 60 days allowed. The record proper does not so recite. A bill of exceptions does not prove itself. It becomes a part of the record only when the record proper shows it was filed in time. The last record entry proper in this case shows that appellant was, on July 7th, given an extension of 60 days in which to file his bill. Matters of record proper have no place in the bill of exceptions, and a recital thereof therein adds nothing to the validity of the bill. Milling Company v. St. Louis, 222 Mo. 306, 121 S. W. 112; Hogan v. Hinchey, 195 Mo., loc. cit. 533, 94 S. W. 522; Harding v. Bedoll, 202 Mo. 625, 100 S. W. 638; Groves v. Terry, 219 Mo. 595, 117 S. W. 1167; Shemwell v. McKinney, 214 Mo. 692, 114 S. W. 1083; Stark v. Zehnder, 204 Mo. 442, 102 S. W. 992; Walser v. Wear, 128 Mo. 652, 31 S. W. 37; Pennowfsky v. Coerver, 205 Mo. 135, 103 S. W. 542; Coleman v. Roberts, 214 Mo. 634, 114 S. W. 39. But, though there is no bill of exceptions, the judgment cannot be affirmed, if the abstract shows errors in the record proper, jurisdictional in character or otherwise. Thomasson v. Merc. Town Mut. Ins. Co., 114 Mo. App. 109, 89 S. W. 564, 1135.

Appellant assigns error as to two matters of record proper.

3. Appellant contends that "the verdict of the commissioners was never reviewed by the court, and was never set aside or affirmed." Section 1268, Rev. St. 1899 (Ann. St. 1906, p. 1040), says that: "The report of said commissioners may be reviewed by the court in which the proceedings are had, on written exceptions, filed by either party; * * * and the court shall make such order therein as right and justice may require, and may order a new appraisement, upon good cause shown. Such new appraisement shall, at the request of either party, be made by a jury under the supervision of the court as in an ordinary case of inquiry of damages." The record shows that respondent did file his exceptions to the commissioners' report, and asked therein that "said report, as to him, may be set aside, and that a jury trial may be awarded him, and his damages inquired into by a jury and assessed to him by a jury." Appellant contends that, before any jury trial can be had in such case, the record must show affirmatively that the court set...