St. Louis

• Decision Date: 10 December 1892
• Citation: 31 P. 676,50 Kan. 99
• Court: Kansas Supreme Court
• Parties: THE ST. LOUIS, KANSAS & SOUTHWESTERN RAILWAY COMPANY v. JOSEPH MORSE

31 P. 676

50 Kan. 99

THE ST. LOUIS, KANSAS & SOUTHWESTERN RAILWAY COMPANY v. JOSEPH MORSE

Supreme Court of Kansas

December 10, 1892

Error from Harper District Court.

THE facts appear in the opinion. Judgment for plaintiff, Horse at the October term, 1889. The defendant Railway Company brings the case to this court.

Judgment reversed and cause remanded.

Geo. R Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error.

The district court did not have jurisdiction by way of appeal from the condemnation proceedings, because no valid and binding bond was filed within the time required by law. The right of appeal of the plaintiff from the award of commissioners is a statutory right, to which certain conditions are annexed, and a party cannot exercise this right without complying with the conditions attached by the statute. C. B. U. B. Rld. Co. v. A. T. & S. F. Rld. Co. 28 Kan. 464.

See, also, Beckwith v. K. C. & O. Rld. Co., 28 id. 484, 486; Lovitt v. W. & W. Rld. Co., 26 id. 297; Justices' Code, § 121; Preston v. Hall, 23 Gratt. (Va.) 600; Sacra v. Hudson, 59 Tex. 207, Bardon v. Southerland, 70 N.C. 528; Marsh v. Brooks, 11 Ired. Law, 409; Basford v. Pearson, 9 Allen, 387; Uptown v. Archer, 41 Cal. 85; Mosly v. Arkansas, 4 Sneed (Tenn.), 324; Clelland v. Tanner, 8 Colo. 252, 253.

A compliance with all the requirements of the statute by the appellant is imperative. People v. Saratoga Common Pleas, 1 Wend. 282, 283; Ex parte Stevens, 6 Cow. 68; Ex parte La Farge, 6 id. 61; Southard v. Phillips, 7 Hun, 18; Thomas v. Thomas, 18 id. 481; Hearne v. Prendergast, 61 Tex. 627.

That a bond which is insufficient at the time of filing to comply with the requirements of the statute is a nullity, and does not give jurisdiction, see Young v. Russell, 60 Tex. 648; The State v. Hoelz, 33 N.W. 597; Figures v. Duncan, 5 S.W. 503; Succession of Calhoun, 35 La. An. 363; Morphew v. Tatum, 89 N.C. 183; Bailey v. Rutges, 91 id. 420; The State v. Wagner, 91 id. 521.

Edwin A. Austin, for defendant in error:

In the case of Lovitt v. W. & W. Rld. Co., 26 Kan. 297, the bond ran to an entire stranger to the record and proceedings, as this court has had frequent occasion to point out. C. K. & W. Rld. Co. v. Town Site Co., 42 Kan. 97; McClelland Bros. v. Allison, 34 id. 155.

In the case of Beckwith v. K. C. & O. Rld. Co., 28 Kan. 484, no bond whatever was given, but a deposit of money attempted to be submitted. Neither of these cases is like the present, nor are they analogous to this case. The policy of the law and the courts was early settled in this state, when in St. J. & D. C. Rld. Co. v. Orr, 8 Kan. 419, this court approved the filing of a new bond where the original was approved by the county commissioners instead of the county clerk whom they had just decided was the proper officer in Gulf Rly. Co. v. Owen, 8 Kan. 409. This was justified by § 131 of justices' code, which is still the law.

In Haas v. Lees, 18 Kan. 454, the court says that "Appeals are favored, and mere technical defects or omissions are to be disregarded as far as possible without obstructing the course of justice." See, also, McClelland v. Allison, 34 Kan. 155; Smith v. Town Co., 36 id. 758; C. K. & W. Rld. Co. v. Town Site Co., 42 id. 97; Gates v. Sanders, 13 id. 411.

In C. K. & W. Rld. Co. v. Town Site Co., supra, the railroad company appeared generally and tried the case upon its merits, submitting special questions to the jury and making a motion for a new trial. That case is decisive of this case. See, also, N. C. Gold Co. v. N. C. Ore Co., 79 N.C. 48, 51; Mitchell v. Goff, 18 Iowa 424; Dunseith v. Linke, 10 Daly (N.Y.), 365; Jenkins v. Emery, 2 Wyo. 58; Irwin v. Bank, 6 Ohio St. 81; Negley v. Jeffers, 28 id. 90. Watts v. Shewell, 31 id. 331; Johnson v. Johnson, 31 id. 131.

The question in Mosley v. Arkansas, 4 Sneed, 324, cited by plaintiff in error, was whether in a negotiable bond a blank amount had been filled with the consent of the surety, which being found in the negative, the bond was held void as materially altered.

In Sacra v. Hudson, 59 Tex. 207, the bond was void because there was no obligee named, and the paragraph cited is mere obiter dictum. See, also, Salter v. Helgen, 40 Wis. 363; Downing v. Still, 43 Mo. 317. Finally, it is submitted that if there is any reviewable question shown by the record in this case, (which we deny,) the appeal bond conditioned as the law directs, made by a proper obligor to the proper obligee, filed with and approved by the proper officer, is sufficient to give the district court jurisdiction, even though for a blank amount. In this case, however, the court below permitted the plaintiff to amend his appeal bond by inserting the amount therein and to refile the same.

VALENTINE, J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was originally a condemnation proceeding instituted by the St. Louis, Kansas & Southwestern Railway Company to condemn a right-of-way for its railroad through Harper county. The commissioners, among other awards to landowners through whose lands the right-of-way was to be established, awarded to Joseph Morse $ 600 as damages to his property, and he attempted to take an appeal from such award to the district court; and the principal question in the case is, whether the district court obtained jurisdiction to hear and determine the case by virtue of the attempted appeal, or from any other source. The district court, on motion to dismiss, held that the appeal was sufficient to give the court jurisdiction. Afterward a trial was had before the court and a jury, and the jury assessed Morse's damages at $ 2,030.57; and the railroad company, as plaintiff in error, has brought the case to this court.

It is contended on the part of the railroad company that the supposed appeal from the award of the commissioners was wholly insufficient; while on the part of Morse it is claimed that the appeal was sufficient, or at most that no insufficiency is shown by the record brought to this court, and that the railroad company, by making certain appearances in the district court, waived all irregularities in the manner of taking the appeal. An appeal from an award of damages by commissioners in railroad condemnation proceedings is taken to the district court in the same manner as appeals are taken from judgments of justices of the peace to the district court. (Gen. Stat. of 1889, PP 1395, 1396) And an appeal from a judgment of a justice of the peace to the district court is taken under § 121 of the justices' act, which reads, so far as it is necessary to quote it, as follows:

"SEC. 121. The party appealing shall, within 10 days from the rendition of judgment, enter into an undertaking to the adverse party, with at least one good and sufficient surety, to be approved by such justice, in a sum not less than $ 50 in any case, nor less than double the amount of the judgment and costs, conditioned, first, that the appellant will prosecute the appeal to effect and without unnecessary delay; and, second, that if judgment be rendered against him on the appeal, he will satisfy such judgment and costs; said undertaking need not be signed by the appellant."

Nothing more nor less than is required by this section is required to perfect the appeal; and § 122 of the justices' act provides, among other things, as follows:

"SEC. 122. The appeal shall be complete upon the filing and approval of the undertaking, as provided in section 121."

In the present case, an appeal bond was filed with and approved by the county clerk. It was signed by Lew. Sargent, the surety, and was not signed by the principals or by any one else. The binding part of the bond, with the condition, reads as follows:

"Now, therefore, Joseph Morse and Lucy A. Morse, as principals, and Lew. Sargent and , as sureties, are held and firmly bound unto the St. Louis, Kansas & Southwestern Railroad Company in the sum of $ . Now, if the said Joseph Morse and Lucy A. Morse shall well and truly prosecute their appeal to effect and without any unnecessary delay, and, if judgment be rendered against them, to satisfy such judgment and costs, then this bond to be void; otherwise, to remain in full force and effect."

The first thing appearing in the record of the proceedings of the district court is a motion made by the railroad company, the defendant in that court, to dismiss the appeal, on the grounds that the district court had no jurisdiction; that no amount was stated in the appeal bond, and that the bond was not such as is required by law. This motion was filed on June 5, 1889. The next thing contained in the record reads, omitting title, as follows:

"Now, on this 12th day of April, 1889, the same being one of the days of the regular March, 1889, term of said court for said year, this cause came on for hearing. By agreement of counsel and consent of the court, this cause is continued to the June term, 1889, of said court."

This was indorsed as follows:

"Filed June 18, 1889. W. R. Rowell, clerk of the district court, by J. P. Horton, deputy."

Afterward and on October 1, 1889, Morse, who was the plaintiff in the district court, filed a motion for leave to amend the appeal bond by inserting an amount therein, and on the same day, but afterward, the court overruled the motion of the defendant railroad company to dismiss the appeal, and sustained the motion of the plaintiff, Morse, permitting him to insert an amount in the appeal bond, and he, with the consent of his surety, Lew. Sargent, inserted the amount of $ 300. Afterward, and on October 24, 1889, the case was tried before the court and a jury with the result aforesaid. In the district court, besides what is shown above, the defendant railroad company made the following...