State ex rel. Kansas City v. Field

• Decision Date: 22 December 1891
• Parties: STATE ex rel. KANSAS CITY v. FIELD, Judge.
• Court: Missouri Supreme Court

17 S.W. 896

107 Mo. 445

STATE ex rel. KANSAS CITY v. FIELD, Judge.

Supreme Court of Missouri, Division No. 2.

December 22, 1891.

MANDAMUS — WHEN LIES — SPECIAL ASSESSMENT.

Where a judge refuses to impanel commissioners and assess damages and benefits of a proposed local improvement on the ground that the return of the officer upon the notice to the interested parties is insufficient to give the court jurisdiction to proceed, but does not dismiss the proceeding or refuse to entertain a motion to amend the return or to issue an alias notice, a writ of mandamus will not lie to compel him to proceed, since, if his decision is erroneous, it may be corrected on appeal.

Proceeding for peremptory writ of mandamus by state of Missouri ex rel. Kansas City against Richard H. Field, judge of the circuit court of Jackson county, Mo. Writ denied.

F. F. Rozzelle and Frank H. Dexter, for relator. R. H. Field, for respondent.

GANTT, P. J.

This is a proceeding for peremptory writ of mandamus by Kansas City against respondent, who is one of the judges of the circuit court of Jackson county. On the 2d of April, 1891, the city passed an ordinance, No. 2,986, to grade Brooklyn avenue from Seventeenth to Eighteenth street. By the terms of article 8 of the special or freeholders' charter, adopted in 1889, provision was made for the ascertainment of damages and benefits, if any, that may arise from the proposed grading of a street or highway in said city, pursuant to section 21, art. 2, of the constitution of Missouri of 1875. By the charter (section 2, art. 8) it is provided that, "when the property owners to be disturbed or damaged by the grading of a street are entitled to remuneration under the constitution, the ordinance shall prescribe and determine the limits within which private property is benefited by the proposed grading." It was also provided that the proceedings should be heard and determined in the circuit court of Jackson county. After the ordinance was duly passed and approved, the mayor was required to file a certified copy in the circuit court, and thereupon the court or a judge thereof should fix a day and place for assessing the damages and benefits, and make an order reciting the ordinance, directed to all persons interested, and notifying them of the day and place fixed. "A copy of such order, containing the name of such owner or party in interest, shall be served, either by delivering to such owner a copy of the notice, or leaving such copy for such owner with some member of the family of such owner over the age of fifteen years." "Corporations shall be served with such notices in like manner as with summons in ordinary civil causes, and, if service cannot be made on any or all of the parties as prescribed within the city limits, the returns shall so state, and the return on such notice shall be prima facie evidence of all facts stated therein; whereupon a copy of the notice not fully served, and, if necessary, an alias notice, specifying a different day to be fixed by the court or judge, shall be published for two weeks in the newspaper at the time doing the city printing, before the day fixed for the ascertaining of the damages and benefits to arise from such grading or regrading, the last insertion to be not more than one week prior to the day so fixed for the hearing." "Such case may be continued and postponed from time to time." "Service of the notices shall be made at least six days before the day fixed for the hearing." "On or before the day set for the hearing all interested parties may file their claims." "The service of notices may be made by any policeman, or any constable, or other officer authorized to serve or return notices, and such return shall be evidence of the facts therein stated." It was averred in the information for the alternative writ herein that all these preliminaries had been complied with down to the service of the notice ordered by the court of which respondent was judge; that from the return of the policeman it appeared he could not serve certain interested parties, and the court, on October 12, 1891, the day fixed for assessing the damages and benefits, made an order of publication, and set the hearing for November 2d. On the 2d of November proof of publication of the order was made, and the cause was continued to the 7th of November. On the 7th day of November, 1891, the following record was made by respondent's court: "In the matter of grading Brooklyn avenue from 17th street to 18th street. No. 11,431. This cause having been set for trial at the request of the city counselor, the same is by the court called for trial. Thereupon one of the parties to this cause, duly notified and served, directs the attention of the court to the return of the policeman upon which publication of notice was made to absent parties defendant in this proceeding; and the court, deeming the return of the policeman upon the original...