Stewart v. White

• Decision Date: 20 May 1889
• Citation: 98 Mo. 226,11 S.W. 568
• Parties: STEWART v. WHITE.
• Court: Missouri Supreme Court

11 S.W. 568

98 Mo. 226

STEWART v. WHITE.

Supreme Court of Missouri.

May 20, 1889.

EMINENT DOMAIN — PROCEDURE.

Acts Mo. 1875, p. 244, (charter of city of Kansas,) provides for the taking of land for the use of said city, and, among other things, requires the engineer to prepare a plat of the land to be condemned, containing the names of the owners at the time of the passage of the ordinance by the council providing for such condemnation. It further provides that it shall be sufficient to bring in the owners of the property who may be such at the passage of such ordinance, and that all persons claiming under them shall be bound by the proceedings. The mayor, and, on appeal, the circuit court, are given power to bring in other parties. Held, that the owner of land at the passage of such an ordinance, who parted with all his interest before the commencement of proceedings to condemn, is not a necessary party to such proceedings.

Error to circuit court, Jackson county; TURNER A. GILL, Judge.

Ejectment by A. C. Stewart against J. J. White for land in Kansas City. Judgment for plaintiff, and defendant brings error.

C. O. Tichenor, for plaintiff in error. Karnes, Holmes & Krauthoff, for defendant in error.

BLACK, J.

This is an action of ejectment for a lot in the city of Kansas. Theodore Winningham owned the lot on the 29th April, 1879. On the 21st February, 1880, the common council of the city of Kansas passed an ordinance entitled "An ordinance to open and extend Fifteenth street from Broadway to Renn street." On the 28th February, 1880, Winningham conveyed the lot to Isabella Pelletto; and on the 18th May, 1881, proceedings were commenced before the mayor, under the ordinance, to condemn the property and assess benefits for the purposes therein specified. Mrs. Pelletto and her husband were made parties, and duly served with notice. Pending these proceedings Pelletto and her husband conveyed to Strayer, who conveyed to the present plaintiff. The condemnation suit was taken to the Jackson county circuit court by appeal, and there tried anew, and the lot in question was assessed with benefits in the sum of $160. It was sold under the judgment for benefits, and the defendant in this suit is the tenant of the person who claims title under that sale. Though Mrs. Pelletto, — the owner of the lot at the date the suit to condemn property and assess benefits was commenced, — and her husband were made parties thereto, and duly served with notice, yet Winningham, the owner at the date of the ordinance, was not made a party, and, for the failure to make him a party, it is insisted that, as to the lot in question, the proceedings, including the sale of the lot, are void, and the sale passed no title; and so the circuit court ruled. This ruling presents the only question in the case.

These proceedings to condemn property for street purposes are governed exclusively by article 7 of the charter of the city of Kansas City, (Acts 1875, p. 244,) which provides for notice both to owners of property to be taken and to owners of property to be assessed with benefits. We are therefore referred at once to that statute to ascertain who are necessary parties. The general scheme of the procedure is that the council...