State v. Goodrich

• Citation: 165 S.W. 707,257 Mo. 40
• Parties: STATE ex rel. SUMMERSON et al. v. GOODRICH, Judge, et al.
• Decision Date: 02 April 1914
• Court: United States State Supreme Court of Missouri

165 S.W. 707

257 Mo. 40

STATE ex rel. SUMMERSON et al. v. GOODRICH, Judge, et al.

Supreme Court of Missouri.

April 2, 1914.

1. CERTIORARI (§ 1)—NATURE AND SCOPE OF REMEDY.

In Missouri the office of the writ of certiorari is the same as at common law, and the usages and principles applicable to its issuance at common law may properly be adopted.

2. CERTIORARI (§ 1)—NATURE AND SCOPE OF REMEDY.

The office of the writ of certiorari is to bring the record of the proceedings of inferior courts before a superior court to determine the legality of their acts; and the questions for determination are whether the lower court had jurisdiction or abused its jurisdiction, or, if acting within its jurisdiction, whether the proceeding can be reviewed by appeal or writ of error.

3. CERTIORARI (§ 64)—REVIEW—SCOPE AND EXTENT.

The writ of certiorari brings up for review only the record proper.

4. MUNICIPAL CORPORATIONS (§ 402) — CHANGE OF STREET GRADE—PROCEEDINGS TO ASSESS COMPENSATION—PETITION.

In a proceeding to assess the damages from the grading of a street, a petition alleging the incorporation of the city and certain defendants, its authority to grade streets and to institute proceedings to determine the damages to private property, an ordinance authorizing the grading of a street particularly described, that defendants were or claimed to be the owners of or interested in the abutting lands, which were particularly described, that such lands might be damaged, that the owners had not waived all claims to damages, that the ordinance authorized proceedings to determine the damages, that a plat was filed therewith showing the location of the property and a profile of the proposed change of grade, together with the general manner of construction, and that the city had been unable to agree with the defendants as to the damages, and praying for the appointment of commissioners to assess the damages, substantially complied with Rev. St. 1909, § 2360 et seq., relative to condemnation proceedings made applicable to a proceeding to assess such damages by Kansas City Charter, art. 7, § 18.

5. MUNICIPAL CORPORATIONS (§ 402)—GRADING STREETS—PROCEEDINGS TO ASSESS COMPENSATION—STATUTORY PROVISIONS.

Where, in a proceeding to assess the damages from the grading of a street, the city presented a petition praying for the appointment of commissioners, and a summons was issued to the property owners, who, on the return day, moved to dismiss and quash the proceeding, which motion was overruled, and answers were filed and commissioners appointed to assess the damages, the procedure conformed to Rev. St. 1909, § 2360 et seq., made applicable to such a proceeding by Kansas City Charter, art. 7, § 18.

6. MUNICIPAL CORPORATIONS (§ 402)—GRADING STREETS—PROCEEDINGS TO ASSESS COMPENSATION—REVIEW BY CERTIORARI.

Under Rev. St. 1909, § 2364, providing, relative to condemnation proceedings, that, upon the filing of the commissioner's report, notice shall be given to property owners and the report reviewed on exceptions by either party, that the court shall make such order as justice requires, and may order a new appraisement at the request of either party by a jury, and section 2038 authorizing appeals from final judgments and certain interlocutory orders, and providing that a failure to appeal before final judgment shall not prejudice the right to have such action reviewed on an appeal from the final judgment, the appointment of commissioners in a proceeding to assess the damages from the grading of a street could not be reviewed on certiorari, where the court had jurisdiction, since, while such action was interlocutory and not reviewable by appeal or writ of error, the refusal to grant a new appraisement or the judgment on the verdict is appealable, and an interlocutory order, which, if erroneous, may be corrected pending a proceeding, does not authorize certiorari.

7. MUNICIPAL CORPORATIONS (§ 402)—GRADING STREETS—PROCEEDING TO ASSESS COMPENSATION —CERTIORARI—PRESUMPTIONS.

In a proceeding to assess the damages from the grading of a street, where the petition pleaded the ordinance authorizing the proceeding by number, title, and date of approval, and the defendants demonstrated their familiarity therewith by setting it up in their answers, it would be presumed on certiorari, as against the contention that the trial court was without jurisdiction because the ordinance was not filed with the circuit clerk, that the court, having conformed in other respects with the requirements of the statute, proceeded regularly in this regard; the ordinance being no part of the record proper, which alone may be considered.

8. MUNICIPAL CORPORATIONS (§ 402)—GRADING STREETS—PROCEEDINGS TO ASSESS COMPENSATION—STATUTORY PROVISIONS.

Under Kansas City Charter 1909, art. 7, § 18, providing that the damages arising from the grading of any street may be ascertained by the procedure prescribed by the general laws of the state for the valuation of lands taken for railroad purposes, etc., as found in Rev. St. 1909, §§ 2360-2369, while such general laws contain provisions not applicable to a proceeding to assess such damages, the procedure may be adopted so far as applicable.

Court in Banc. Original certiorari proceeding by the State, on relation of Elizabeth Summerson and others, against James E. Goodrich, Judge of the Circuit Court of Jackson County, and another. Writ quashed.

Piatt & Marks, of Kansas City, for relators. Andrew F. Evans and Francis M. Hayward, both of Kansas City (Samuel W. Moore, Samuel W. Sawyer, and Clarence S. Palmer, all of St. Louis, of counsel), for respondents.

WALKER, J.

This proceeding is based upon a writ of certiorari issued out of this court to the circuit court of Jackson county.

On October 2, 1912, one of the respondents, as plaintiff in the original action, to wit, Kansas City, through its counsel, filed in said circuit court a petition praying for the appointment of commissioners to assess whatever damages might be sustained by owners of certain lands abutting on Independence avenue in said city by reason of the grading of said avenue, and to fix the compensation to which said owners were entitled on account of said grading. This petition was filed under the authority of section 18, art. 7, Charter of Kansas City 1909, which is as follows: "In addition to the method hereinbefore provided in this article for ascertaining the damages, if any, arising from proposed grading or regrading of any street, avenue, alley or public highway, or part thereof, whenever the city shall deem it necessary, and by ordinance so determine, it may adopt the same procedure for ascertaining the damages caused by such grading or regrading as is prescribed in the general laws of the state for the appropriation and valuation of lands taken for telegraph, telephone, gravel and plank or railroad purposes, being chapter 12 of article 7 of the Revised Statutes of Missouri of 1899.¹ Upon paying to the clerk of the circuit court the amount of damages awarded, the city shall have the right to proceed with such grading or regrading, notwithstanding the filing of exceptions to such award, and any subsequent proceedings shall only affect the amount of compensation to be paid."

On the day the petition was filed, a summons was issued for the defendants, who were the abutting property owners, returnable October 16, 1912. On the return day the defendants appeared and through counsel made return by a motion to dismiss and quash the proceedings, which motion was by the court on October 17, 1912, overruled. On October 18th defendants filed separate answers to the petition, and on October 19, 1912, commissioners were appointed by the court to assess the damages and fix the compensation to which the abutting owners were entitled by reason of the grading of said avenue. The commissioners were appointed and sworn, whereupon defendants, who are the relators here, applied for and were granted a writ...