State ex rel. State Highway Com'n v. Shultz
| Decision Date | 13 November 1951 |
| Docket Number | No. 7033,7033 |
| Citation | 243 S.W.2d 808,241 Mo.App. 570 |
| Parties | STATE ex rel. STATE HIGHWAY COMMISSION v. SHULTZ et al. |
| Court | Missouri Court of Appeals |
Wilkie Cunnyngham, Wallace Wilson Jr., Jefferson City, for appellant.
Sater & Monroe, Monett, for respondents.
This is an appeal from a judgment of the Circuit Court of Lawrence County, Missouri, sustaining a motion to dismiss plaintiff's petition in condemnation.
Relator, State Highway Commission of Missouri, filed an action in condemnation to acquire right-of-way involving seven tracts of land in connection with the widening and reconstructing of an old county road for a distance of 3.134 miles in Lawrence County, which road is fully described in the petition. The petition contained the usual allegations, among them that plaintiff had agreed with the Lawrence County Highway Commission 'the local officials having charge of or jurisdiction over the highway * * *' on the location of the road.
On the date set by the trial court for the appointing of commissioners, defendants filed their motion to dismiss the petition, listing five grounds therefor:
1. That the trial court had no jurisdiction.
2. The petition failed to state facts necessary for jurisdiction.
3. The County Highway Commission of Lawrence County had no jurisdiction over the road proposed in the petition.
4. The petition fails to state a claim on which relief could be granted in that there is already an all-weather road, adequate for the community purposes involved; that the road terminates at a blind end at the top of a hill; that the proposed widening of said road is not of public use as required by the Constitution; that plaintiff is arbitrarily attempting to take said land which is not necessary and will not be used for public purposes.
5. That the special road district of said territory has jurisdiction of the road and the improvements thereon.
After hearing testimony on the motion to dismiss, the trial court entered the following judgment: '* * * It is therefore ordered and decreed by the court, that the motion to dismiss be and the same is sustained and the petition filed herein is dismissed.'
We first are met with a motion to affirm the judgment because appellant failed to file a motion for new trial and secondly, that the transcript discloses testimony was introduced and therefore the trial court should have been given opportunity to review his error by motion for new trial.
We cannot agree with respondents' motion to affirm.
Section 510.150, RSMo1949, provides: '* * * A dismissal with prejudice operates as an adjudication upon the merits. * * * and any involuntary dismissal other than one for lack of jurisdiction or for improper venue shall be with prejudice unless the court in its order for dismissal shall otherwise specify.'
The motion to dismiss relied upon the ground that the petition failed to state a claim and we think when the court, by a general judgment, sustained this motion, it was a final judgment from which an appeal would lie under this statute. Merit Specialties Co. v. Gilbert Brass Foundry Co., Mo.Sup., 241 S.W.2d 718; White v. Sievers, 359 Mo. 145, 221 S.W.2d 118; Jones v. Williams, 357 Mo. 531, 209 S.W.2d 907; Husser v. Markham, Mo.App., 210 S.W.2d 405.
It seems there is but one material question presented in this appeal and that is the question of whether or not the Lawrence County Highway Commission had charge of or jurisdiction over the highway so as to agree with the State Highway Commission on the location of the road to be improved.
The facts necessary for a solution of the question in issue are not in dispute. The proposed improvement extended over an existing public road from U. S. Highway south 3.134 miles to the top of a hill overlooking Spring River; that the highway, over which said improvements were to be made, was a part of an existing road located in a special road district which, for many years, had maintained it.
Defendants offered testimony on their motion to dismiss that the road at present was an all-weather road, sufficient to accommodate the travel thereon and they state in their brief that this road does not connect the most practical route with the several centers of population in the county. The special road district had not deeded or transferred the road to the Lawrence County Highway Commission.
There was no question but what the road sought to be condemned had been incorporated in the supplementary system of state highways as alleged in the petition. The facts are not disputed that plaintiff had agreed with the Lawrence County Highway Commission on the location of the road. It is admitted that the State Highway Commission had approved a request of the Lawrence County Highway Commission to put the road into the county 100 mile system. It is also admitted that the action of the County Highway Commission, in putting the road in question in the 100 mile system and also in agreeing with the State Highway Commission on its designation and selection as a state supplementary road, was never challenged in any proceedings excepting by the motion to dismiss in this action.
Motions to dismiss took place of the old demurrer which has been abolished. However, there is an important change under the new code. The lack of jurisdiction over the subject matter or over the person; or improper venue or insufficiency of process or the service thereof or that plaintiff has not the legal capacity to sue or that there is another action pending between the same parties for the same cause in this state; that several claims have been improperly united or that the counter-claim or cross-claim is one which cannot be properly interposed in the action have all been made grounds for a motion to dismiss. The grounds for any of the above stated objections may be supplied by an affidavit accompanying the motion and may be controverted by affidavit. The old demurrer reached only those matters appearing on the face of the pleadings. However, now, it is proper to raise the question of jurisdiction by motion to dismiss and to permit the movant to furnish additional facts.
This motion did raise the question that the petition did not state a claim upon which relief could be granted. The new code retains the rule that objections must appear on the face of the pleadings when the petition is attacked for failure to state a claim and can be raised only when appearing on the face of the pleadings. Carr Mo. Civil Procedure, Vol. II, p. 558, Secs. 9 and 10.
An examination of the petition in this case reveals that it is in the usual form and the allegations thereof are sufficient to state a cause of action in condemnation. It would appear from respondents' brief and argument that they do not contest this point.
The only question for this court to decide is the question of jurisdiction over the subject matter in the action.
Article IV, Sec. 32 of the Constitution of Missouri 1945, provides: 'Supplementary state highways shall be selected by mutual agreement of the commission and the local officials having charge of or jurisdiction over roads in the territory through which such supplementary state highways are to be constructed.'
Under point II of appellant's brief and argument, the real question in this appeal is presented. Appellant states, 'Defendants in their motion to dismiss raised the contention that the Lawrence County Highway Commission had no jurisdiction over the road involved in this condemnation because it was located in a special road district.' Respondents raise this same question under Point I of their brief.
The facts are not in dispute. The road in question was located in a special road district; the State Highway Commission had approved a request of the Lawrence County Highway Commission to put the road into the county 100 mile system; by agreement between the State Highway Commission and the Lawrence County Highway Commission this road was taken into the State Supplementary System, selected, designated and located by said agreement. The action of the County Highway Commission in putting the road in question in the 100 mile system, and in agreeing with the State Highway Commission on its designation and selection as a state supplementary road was never challenged until the attack made in respondents' motion to dismiss.
Under Chapter 230, RSMo1949, 'County Highway Commissions' Section 230.030 is as follows: ...
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