State ex rel. Fugatt v. Hawkins

• Decision Date: 06 February 1954
• Docket Number: No. 7305,7305
• Parties: STATE ex rel. FUGATT v. HAWKINS, Judge.
• Court: Missouri Court of Appeals

Page 387

264 S.W.2d 387

241 Mo.App. 640

STATE ex rel. FUGATT v. HAWKINS, Judge.

No. 7305.

Springfield Court of Appeals, Missouri.

Feb. 6, 1954.

Haymes & Haymes, Marshfield, for relator.

Stockard & Stockard, Jefferson City, for respondent.

McDOWELL, Presiding Judge.

This is an original proceeding in prohibition. A provisional rule was issued to respondent, Honorable James P. Hawkins, Judge of the Circuit Court of Webster County, Missouri, to prevent him from assuming jurisdiction over the person of relator in a condemnation proceeding.

Relator's application states that the Sho-Me Power Corporation instituted a proceeding in condemnation in Webster County, Missouri, to obtain a right-of-way over lands belonging to relator and others, naming relator as defendant; that said condemnation petition included an application for order of publication of notice as follows:

'Defendants, John F. Fugatt, Frances Fugatt, * * * are non-residents of the State of Missouri or have absented themselves from their usual place of abode in this State or have concealed themselves so that the ordinary process of law cannot personally be served upon them. The present known address of John F. Fugatt is C.P.O.U.S.S. Northampton, % Fleet Post Office, New York, New York.

'Wherefore petitioner prays that the court shall issue an order of publication of notice to the defendants notifying them of the commencement of this action and stating briefly its object and general nature and describing the property affected.'

The application stated that the clerk of the Circuit Court in pursuance of such application made an order of publication, directed to this petitioner and other defendants, which was published in The Marshfield Mail, a newspaper in Webster County, notifying petitioner that the condemnation proceedings would be heard December 3rd, 1953, in the Circuit Court room of Webster County.

The application stated that the Sho-Me Corporation requested the clerk to send a copy of the summons with petition attached to relator by registered mail, which request was complied with by the clerk and a copy of the summons and petition by registered mail was received by relator November 17, 1953.

The application states that on December 10, 1953, relator filed a motion to quash the service for the reason that the methods of attempted service were made under the provisions of the general service statute and rule of the Supreme Court in connection therewith. The motion states that the only methods of service available to the Sho-Me Power Corporation were those set forth in Section 523.030 RSMo 1949, V.A.M.S. It states that the attorney for the Sho-Me Corporation admitted that relator was a resident of Missouri in his argument on his motion to quash and stated that service by publication was authorized under the allegation that relator had absented himself from his usual place of abode in this state so the ordinary process of law could not be served upon him. The application stated that the court denied relator's motion to quash and exceptions were saved to such rule. It stated that the trial court set the cause for hearing December 30, 1953, and that petitioner verily believes that the trial court will proceed to appoint commissioners to assess damages unless prohibited to do so by an order of this court.

Relator's application further states that by the provisions of Section 523.030 RSMo 1949, V.A.M.S., service by publication in condemnation proceedings is only authorized if the name or residence of the owner be unknown, or if the owner be a nonresident of Missouri.

The application then states that relator has no adequate remedy by appeal or otherwise and prays that this court prohibit the trial court from proceeding in said condemnation proceedings so far as the interest of relator is concerned.

Respondent filed a motion for judgment on the pleadings and record and assigns four reasons therefor:

1. The petition fails to state facts showing that relator is entitled to relief.

2. There is nothing before the court from which it can conclude that respondent acted in excess or without jurisdiction.

3. Service by publication as shown by the record was proper.

4. Service by registered mail is authorized in condemnation proceedings and the record shows that proper service was had by mail on relator.

Respondent's return states that in exercising jurisdiction over relator, he did not exceed his jurisdiction but, after considering the pleadings and the motion to quash, filed by relator, the evidence offered thereon and the arguments made in support of the motion, did act in what he believed was right in assuming jurisdiction over relator in the condemnation proceeding.

The return admits respondent denied the motion to quash the service had on relator; that relator saved exceptions to the ruling and that the cause was set for trial December 30, 1953; that the cause has been continued awaiting the action of the Appellate Court.

The return denied every other allegation in relator's application contained.

The return pleads that the Sho-Me Corporation filed its verified petition in condemnation pursuant to an order of the court, directing the clerk of the court to issue summons to each named defendant, including relator, or cause proper publication of notice for three weeks consecutively. That in said petition it was alleged that relator was a non-resident of Missouri and that he could not be served by the ordinary process of law; that Section 523.030 RSMo 1949, V.A.M.S., provides, in part that if the residence of the owner of land be unknown or if the owner does not reside within the state, notice shall be given by publication. The return alleges that notice of publication to relator was given according to the law as declared in said section of the statute and was valid service.

Respondent pleads that condemnation proceeding in Missouri is a special proceeding within the meaning of Section 506.160 RSMo 1949, V.A.M.S., and that notice by publication is specifically authorized by Section 523.030 RSMo 1949, V.A.M.S.; that said section 506.160 authorizes substituted service by registered mail in any special proceeding in which notice of publication is authorized when plaintiff makes the required allegation in its petition, which was done; that service by mail was had in accordance with the statute provided and that relator was served November 17th, 1953, which was more than ten days before the hearing of the petition and respondent states that such substituted service by mail was a valid service under the law.

The return denies that the relator had no adequate remedy at law and states that the petition is fatally defective in that it fails to state grounds upon which the court would be warranted in determining respondent acted in excess of jurisdiction.

An examination of relator's application for writ of prohibition and the return of respondent reveals that there are but two questions presented to this court for determination.

First, does the application for the writ state sufficient facts to warrant this court in issuing its order prohibiting respondent, Judge of the Circuit Court of Webster County, from proceeding to hear a condemnation proceeding because relator was not properly served?

Secondly, is substituted service by mail authorized in condemnation proceedings?

We think we can dispose of the motion to quash and the questions involved therein in deciding the above issues.

It is contended by relator that eminent domain is a power given by statute in derogation of the common law; that proceedings thereunder must be strictly construed in favor of the property owners. The law is so stated in the City of Caruthersville v. Faris, 237 Mo.App. 605, 146 S.W.2d 80; Board of Regents for Northeast Missouri State Teachers College v. Palmer, 356 Mo. 946, 204 S.W.2d 291.

Section 506.010 RSMo 1949, V.A.M.S., reads as follows:

'This code shall be known and cited as 'The Civil Code of Missouri' and shall govern the procedure in the supreme court, court of appeals, circuit courts and common pleas courts in all suits and proceedings of a civil nature whether cognizable as cases at law or in equity, unless otherwise provided by law. * * *'

Proceedings in condemnation are specifically provided for in Chapter 523 RSMo 1949, V.A.M.S.

Section 523.030 RSMo 1949, V.A.M.S., provides how service may be obtained. Said section reads as follows:

'Upon the filing of the petition, a summons shall be issued, giving such owner at least ten days' notice of the time when said petition will be heard, which summons shall be served by the sheriff of the county, in the same manner as writs of summons are or may be by law required to be served. If the name or residence of the owner be unknown, or if the owners, or any of them, do not reside within the state, notice of the time of hearing the petition, reciting the substance of the petition and the day fixed for the hearing thereof, shall be given by publication for three weeks consecutively, prior to the time of hearing the petition, in a newspaper published in the county in which the proceedings are pending, * * *.'

It is admitted in relator's application that service by publication was had by publishing notice to the relator in 'The Marshfield Mail', a newspaper published in Webster County, as required by Section 523.030 RSMo 1949, V.A.M.S., under the Special Condemnation Proceedings, but, plaintiff contends that the request made by the Sho-Me Corporation, in its condemnation proceedings, was under the General Civil Code. The application clearly shows that this request did state that relator was a non-resident of the state of Missouri. The statute provides that if the owner does not reside within the state publication may be had. We submit that whether or not the relator was a non-resident of the state was a question of fact to be first decided by the trial court. Now relator's application states that a motion...