State ex rel. McDermott Realty Co. v. McElhinney
| Decision Date | 26 November 1912 |
| Citation | 151 S.W. 457,246 Mo. 44 |
| Parties | THE STATE ex rel. McDERMOTT REALTY COMPANY et al. v. JOHN W. McELHINNEY, Judge |
| Court | Missouri Supreme Court |
Writ allowed.
Joseph C. McAtee for relator.
(1) Relators are seeking to enforce a constitutional right, have complied with the law and are entitled to an outlet. The Constitution creates the right and the Legislature has no power to limit it, but can only prescribe the modus operandi by which the way may be obtained. (2) Admitting for the purpose of the argument that the Legislature may limit the right to an inhabitant of the State, the petition of relators in the county court of St. Louis county sufficiently averred the inhabitancy of the McDermott Realty Company by referring to it as a "domestic corporation." (3) The question of the jurisdiction of respondent was conclusively determined in this court in the Wiethaupt case, and was at the time of respondent's failure to proceed on the ground of lack of jurisdiction, and is now res adjudicata. (4) For the purpose of jurisdiction in the courts of the United States a corporation is to be deemed a citizen of the State creating it, and no averment to the contrary is permitted. Railroad v. Letson, 2 How. 497; Marshall v Railroad, 16 How. 314; Insurance Co. v. French, 18 How. 408; Draw-Bridge Co. v. Shepherd, 20 How 227; Railroad v. Koontz, 104 U.S. 12; Goodlet v Railroad, 122 U.S. 391. (5) Even though it may be necessary to specifically allege that petitioners are inhabitants of the State, still the failure to do so does not, ipso facto, deprive the respondent of jurisdiction. Sec 4091, R.S. 1909 provides that in all cases of appeal from the final determination of any case in the county court, such appellate court shall thereupon be possessed of such cause and shall proceed to hear and determine the same anew, and in the same manner as if such cause had originated in such appellate court, without regarding any error, defect or informality in the proceedings of the county court. On such appeals, where jurisdictional defects are urged, it is the duty of the court to give plaintiff an opportunity to amend. Dowdy v. Wamble, 110 Mo. 280; Daniel v. Atkins, 66 Mo.App. 342; Heman v. Fanning, 33 Mo.App. 53. (6) It was the duty of respondent to have sustained the motion for the appointment of new commissioners or for an order upon the former commissioners to proceed as therein asked for. Secs. 10450, 10451, R.S. 1909. (7) Mandamus is the proper and only adequate remedy open to relators. State ex rel. v. Laughlin, 75 Mo. 358; State ex rel. v. Philips, 97 Mo. 347.
Boyle & Priest, J. C. Kiskaddon, A. E. L. Gardner and R. L. Stevens for respondent.
(1) The petition for the establishment of a way of necessity does not state that petitioners are inhabitants of the State. The statute provides that "if any inhabitant of this State shall present a petition to the county court of the proper county" setting forth certain matters, then the county court shall proceed to the establishment of a private way. This allegation in the petition, or the fact that petitioners are residents of the State, must appear to give the county court jurisdiction. The allegation is obviously absent from the petition, and the fact nowhere appears in the record of the case made in the county court. R.S. 1909, Sec. 10447; Patchen v. Durett, 116 Mo.App. 439; Chandler v. Reading, 129 Mo.App. 68. (2) But even if the fact that petitioners were inhabitants of the State appeared somewhere in the record of the county court, yet the county court could not take jurisdiction, the allegation of residency not appearing in the petition. Condemnation of a private way is a proceeding in invitum -- the taking of private property for private use against the will of the owner. Therefore, every fact necessary to move the court to act, that is, to give the court jurisdiction to act, ought to appear in the application to the court. Failing to appear in the petition the court, if it acts at all, does so without jurisdiction. In condemning private property for use as a public highway, every preliminary step to be done, and every allegation in the petition necessary to give the court jurisdiction, must appear, or appear to have been done. How much more then is it necessary, when private property is to be taken for a private use? Williams v. Kirby, 196 Mo. 628; Fisher v. Davis, 27 Mo.App. 326; County v. Cowan, 54 Mo. 237; Colville v. Judy, 73 Mo. 654; Whitely v. County, 73 Mo. 50; Ells v. Railroad, 51 Mo. 203; Zimmerman v. Snowdon, 88 Mo. 219; Haggard v. Railroad, 63 Mo. 302; County v. Wilson, 61 Mo. 239; St. Louis v. Koch, 169 Mo. 591. (3) The circuit court on appeal from the county court has only derivative jurisdiction; and if the county court did not have jurisdiction, neither has the circuit court. It may be true that the statute provides that on appeal from the county court to the circuit court, the circuit court shall try the case de novo "without regarding any error, defect or informality in the proceedings of the county court." R.S. 1909, Sec. 4091. But this statute only applies to cases in which it appears that the county court had jurisdiction, but has committed manifest error, in its "proceedings." There is no magic in the appeal, or in the cited language of the statute, to give the circuit court jurisdiction where it appears that the county court had none. Haggard v. Railroad, 63 Mo. 302; Gist v. Loring, 60 Mo. 489; Williams v. Kirby, 169 Mo. 628; Barrett v. Railroad, 68 Mo. 108; Rohland v. Railroad, 89 Mo. 183; Sidwell v. Jett, 213 Mo. 608; Spurlock v. Dorman, 182 Mo. 248. (4) Relators contend that the allegation in the petition that the McDermott Realty Co. is a "domestic corporation" is equivalent to an allegation that it is an inhabitant of the State. This, however, does not help the other petitioner, John W. Bellairs. The words "domestic corporation" does not mean inhabitants. Every corporation, not municipal or quasi-municipal, is domestic in some sovereignty, but it does not mean that it is domestic in the State of Missouri. There is no allegation in the petition that the petitioner is incorporated under or by virtue of the laws of this State. It may be incorporated by some other sovereignty; have its legal habitation there, and hold real estate here. Even a corporation incorporated by some other State, may, for some purposes, become an inhabitant here, but only if it does its business and has its principal office in this State. But no fact of this kind appears anywhere in the record. Gormully v. Pope, 34 F. 818; Riddle v. Railroad, 39 F. 290; Gilbert v. Insurance Co., 49 F. 885; Shamwald v. Davids, 69 F. 704; Scollenberger, Ex parte, 96 U.S. 369; Galveston v. Gonzales, 151 U.S. 502. The allegations that one of the petitioners is a "domestic corporation" is not an allegation of inhabitancy, it is a conclusion of law, and not the allegation of a fact. Cook v. Pullman Co., 70 Mo. 670; State ex rel. v. Jones, 77 Mo. 676; Verdin v. St. Louis, 131 Mo. 157; Nichols v. Larkin, 79 Mo. 271; Sidway v. Land Co., 163 Mo. 375; Mallinckrodt v. Nemnich, 169 Mo. 397; Shohoney v. Railroad, 223 Mo. 671; Nevins v. Moore, 221 Mo. 356. (5) Perhaps mandamus might lie to compel a court to assume jurisdiction, when it, as a preliminary question at the very inception of the matter, totally refuses to entertain jurisdiction. Mandamus, in such case might lie to compel the court to move. But when the court assumes jurisdiction to the extent of trying the question whether it has jurisdiction or not, decides that it has not, and renders judgment accordingly the mandamus will not lie, but appeal or writ of error is the remedy. Ex parte Railroad, 103 U.S. 796; Ex parte Railroad, 108 U.S. 566; State ex rel. v. Satterfield, 54 Mo. 394; Williams v. Judge, 27 Mo. 227; Bleeker v. Land Co., 30 Mo. 113; State ex rel. v. Megown, 89 Mo. 158; Ward v. County, 50 Mo. 402; Manfield v. Sylvester, 50 Mo. 338; State ex rel. v. County, 68 Mo. 48; State ex rel. v. County, 41 Mo. 224; State ex rel. v. Engleman, 86 Mo. 561; State ex rel. v. Buhler, 90 Mo. 570; State ex rel. v. Smith, 105 Mo. 9; State ex rel. v. Rombauer, 125 Mo. 632; State ex rel. v. McKee, 150 Mo. 243; 2 Bailey on Jur., Secs. 594, 595.
OPINION
In Banc.
Mandamus.
-- This is an original proceeding in mandamus, the purpose of which is to obtain a writ from this court, commanding the respondent, as judge of the circuit court of St. Louis county, to assume jurisdiction of a proceeding pending in his said court on appeal from the county court of said county, in which relators are seeking to establish a private road, and also commanding him to appoint commissioners to lay out said road and assess damages therefor. Upon the filing of the petition an alternative writ was issued, and in due time respondent made return thereto. Relators filed a motion for judgment on the pleadings, and the cause has been submitted for decision on the issues of law thus made. The substance of the allegations of relators' petition, briefly stated, is as follows:
On August 22, 1910, they filed in the county court of St. Louis county a petition for a private road. That petition alleged that relator McDermott Realty Company, a domestic corporation, was the owner, and that relator John W. Bellairs was the lessee, of a tract of land therein described, located in said county, and that no public road passed through or touched said tract of land, and prayed that a private road be opened from said tract, through and over the lands of the United Railways Company and others, to Marine Avenue, a public road in said county. Upon a hearing in the county court the petition was denied and petitioners appealed to the circuit court. The respondent, as judge...
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