State ex rel. Greeley v. City of St. Louis

• Decision Date: 21 March 1876
• Citation: 1 Mo.App. 503
• Parties: THE STATE, ex rel. CARLOS S. GREELEY et al., Appellant, v. THE CITY OF ST. LOUIS et al., Respondents.
• Court: Missouri Court of Appeals

1 Mo.App. 503

THE STATE, ex rel. CARLOS S. GREELEY et al., Appellant,

v.THE CITY OF ST. LOUIS et al., Respondents.

St. Louis Court of Appeals, Missouri.

Mar. 21, 1876.

1. A return of the marshal, in proceedings before the land commisioner, that he “executed the writ by having had personal service on the following named defendants,” naming them, is insufficient.

2. It should appear on the face of the proceeding that the land commissioner examined the jurors and found them disinterested and qualified according to law.

3. In proceedings to open a street, a jury cannot arbitrarily select a portion of a street, or of the city, as a taxing district, and assess benefits against it, unless, perhaps, in the case of abutters. Such action is unconstitutional.

4. After a rehearing is had, an appeal may be taken without a motion for a new trial having intervened.

APPEAL from St. Louis Circuit Court.

Proceedings, verdict, and judgment quashed.Leverett Bell and W. H. Horner, for respondents, cited: Cowers v. Iron Mountain R. R. Co., 48 Mo. 556; Papin v. Massey, 27 Mo. 453; Wall v. Nay, 30 Mo. 494; Acts of Missouri, 1870, 478, sec. 2; Blaisdell v. Steamboat Pope, 19 Mo. 159; Stewart v. Stringer, 45 Mo. 116; Muldoon v. Bates, 5 Mo. 214; Wag. Stat., secs. 19, 20, p. 1036; Tyler v. City, 56 Mo.; State ex rel. v. City, 52 Mo. 574; Egyptian Levee Co. v. Hardin, 27 Mo. 495; Uhrig v. City, 44 Mo. 459; Newby v. Platte, 25 Mo. 264; People v. Mayor of Brooklyn, 4 Comst. (N. Y.) 419.

Holmes & Holmes, for appellant, cited: Ells v. Pacific R. R. Co., 51 Mo. 200; Leslie v. City of St. Louis, 47 Mo. 474; Anderson v. City of St. Louis, 47 Mo. 479; Ruggles v. Collier, 43 Mo. 353; Hewitt v. Weathersby, 57 Mo. 276; Huff v. Shepard, 58 Mo. 246; 2 Dill. on Mun. Corp., sec. 471, p. 571; Session Acts 1870, p. 478, sec. 2; City of Boonville v. Armrod, 26 Mo. 193; People v. Brighton, 20 Mich. 57; Nichols v. Bridgeport, 23 Conn. 208; Farmington v. Morgan, 20 Wend. 207; Dickey v. Tennison, 27 Mo. 373; Smith's Admr. v. Rollins, 25 Mo. 408; Waddington v. City of St. Louis, 14 Mo. 190.

BAKEWELL, J., delivered the opinion of the court.

This was a proceeding to vacate the proceedings of the city of St. Louis and the land commissioner, in the matter of opening Franklin avenue, in the city of St. Louis, from the western boundary line of Stoddard addition to the eastern boundary line of school section No. 16, under ordinance 4724, approved July 24, 1860.

The relators alleged in their petition that they owned a lot, of 250 feet, on the south side of Franklin avenue, and a lot, of fifty feet, on the north line of Franklin avenue; that, in virtue of the revised charter of 1870, and the ordinance aforesaid, respondents, on January 11, 1873, commenced proceedings to open said avenue; issued notice, and proceeded to impanel a pretended jury, which, on March 8, 1873, rendered a verdict assessing the aggregate value of the property taken at $18,387, of which $1,838.70 was assessed against the city, and $16,548.30 against persons supposed to be benefited, of which sum there was assessed against relators and their property aforesaid $940.80; which verdict was confirmed by the city council, and judgment rendered therefor by the land commissioner. The petition then sets out that the proceedings were irregular in many respects, which are fully set forth, and prays that the record may be inspected by the Circuit Court, and the whole proceedings quashed on account of these alleged errors. The writ issued; and, after a reassignment of errors by petitioners, on hearing, the judgment and proceedings were, by the Circuit Court, quashed; but, on rehearing, this judgment was set aside, and the proceedings and judgment of the city and land commissioner were affirmed. Relators excepted to the granting a motion for a rehearing, and to the action of the court in overruling their assignment of errors set out in their petition, and in affirming the proceedings and judgment of the land commissioner; and they bring the case here by appeal.

Respondents insist that, no motion for a new trial having been made by appellants below, the judgment of the court below should be affirmed. We do not so think. There was no necessity for any such motion to give to the Circuit Court an opportunity of correcting any errors it had committed. The reassignment of errors sufficiently shows the points insisted upon below; and, after giving judgment for appellants, granting a rehearing and reversing its judgment, it may be presumed that the Circuit Court had every opportunity of correcting errors, and acted with matured judgment, after full consideration of every material point in the case.

The exceptions to the proceedings before the land commissioner are numerous. The following are those upon which appellants seem most to insist:

1. It is claimed that the land commissioner acquired no jurisdiction of the relators or their property, there having been no service of notice on them as required by law; and, further, that, of the ten persons whose property it was proposed to take for the opening of Franklin avenue, only two were legally served. The record shows nothing as to any voluntary appearance, and, as to relators, they did not appear, as far as the record shows.

The law requires (Acts 1870, p. 478, sec. 2) that six days' written or printed notice shall be given to the person whose property is to be condemned, which notice shall be served by the city marshal, either by delivering the same to such person, or by leaving a copy thereof at the usual place of abode of such person, with some member of the family over the age of fifteen years; or, if the owner of any such property is unknown, or absent from the city, or cannot be served in this manner, such notice shall be published at least four weeks in the two daily papers doing the city printing.

The return on the original papers sent him shows that the notice of the land commissioner was issued against eighty-five persons, including relators. The return of the marshal is in these words: “Executed the within writ in the city of St. Louis, on January 16, 17, and 18, 1873, by having had personal service on the following named defendants.” Then follow the names of relators and forty-three others.

We do not think this return was sufficient to give the land commissioner jurisdiction of those persons whose property was to be condemned. Jurisdiction over a person can never be acquired, except in case of consent, unless by a method which the law specifically provides. We do not know what may have been the deputy marshal's idea of “having had personal service.” He may have considered an offer to read the notice, or actual reading of it, a personal service, as is the practice in serving a subpœna. There is nothing to show that the notice was delivered to defendants, or left at their respective places of abode, as the law requires. To this it may, perhaps, be replied that relators do not come within the class whose property was to be condemned, but are of the class whose property was to be assessed to pay damages; and that the provisions of the law, as to notice to this latter class, have been substantially complied with. This can hardly be material, as, if those whose property it was proposed to take were not served, and did not appear, the proceedings must necessarily be void, not only as to them, but also as to those assessed for benefits. It appears, however, that the notice to relators, who were of the class assessed benefits, was not in compliance with the law. In regard to notice to this class the law says, in the section quoted above: “Such notice shall be served or published for the same terms of time, for like causes, and with like effects, respectively, as is provided for notices in cases of condemnation.”...