Stutz v. Cameron

• Decision Date: 03 January 1914
• Parties: CONRAD STUTZ et al. v. JOHN B. CAMERON et al., Appellants
• Court: Missouri Supreme Court

162 S.W. 221

254 Mo. 340

CONRAD STUTZ et al. v. JOHN B. CAMERON et al., Appellants

Supreme Court of Missouri, First Division

January 3, 1914

Appeal from Clark Circuit Court. -- Hon. Charles D. Stewart, Judge.

Affirmed.

W. L Berkheimer and Bert L. Gridley for appellants.

(1) The court erred in not sustaining the motion of the appellants to dismiss this cause for the reason it had no jurisdiction on account of the defective notice. The evidence shows that the notice of the presentation of the petition herein was posted on the 17th day of October, 1910, after dark and while the moon was shining, and the court will take judicial notice 1st, that there are 31 days in the month of October; 2d, that the first Monday in November is the 7th day of said month. Discarding the first day, the count will commence on the 18th day of October, the last day would be Sunday the 6th of November, which by virtue of the statute should be disregarded in the count, and the notice of this proceeding was posted nineteen days. R. S. 1909, secs. 8057 and 10346. These statutes are to be strictly construed. Shafner v St. Louis, 31 Mo. 264; Lind v. Clemmens, 44 Mo. 450; Blize v. Castlio, 8 Mo.App. 290; Anderson v. Pemberton, 89 Mo. 61; St. Louis v. Gleason, 89 Mo. 67; School Dist. v. Dorton, 125 Mo. 439. Applications to open public roads are summary in their nature, and are had with a view to condemn the property of the citizen for the benefit of the public, and must be conducted in strict compliance with the statute, or the court will acquire no jurisdiction. Spurgeon v. Bartlett, 56 Mo.App. 349; St. Louis v. Koch, 169 Mo. 587; Anderson v. Pemberton, 89 Mo. 61; Ellis v. Railroad, 51 Mo. 200; Whitley v. Platt County, 73 Mo. 30; Colby v. Judy, 73 Mo. 651; Railroad v. Townsite Co., 103 Mo. 462; In re Bledsoe Hill, 200 Mo. 642; Williams v. Kirby, 169 Mo. 622; Gates v. Crandall, 123 Mo.App. 418. The days on which the first act is done (posting the notices) must be excluded from the computation, and the whole number of days must intervene before the time fixed for doing the second act (the action of the county court in this case). Pitts v. Shew, 4 Barn. & Ald. 208; Mitchell v. Foster, 4 Perry & D. 150; Queen v. Justice, 8 Adol. & E. 173; Zouch v. Emsy, 4 Barn. & Ald. 522; Hardy v. Pyle, 9 Barn. & C. 603; Judd v. Fulton, 4 How. Prac. 298; Oswego v. Ives, 2 Hill, 355; Turnpike Co. v. Haywood, 10 Wend. 422; Small v. Endrick, 5 Wend. 137; Rankin v. Woodworth, 6 Pa. 48; Wood on Limitations, sec. 56; Eaton v. Lyman, 33 Wis. 36; Collins v. Smith, 57 Wis. 286. (2) Again, the court had no jurisdiction for the reason, the report of the commissioners show, on its face that the commissioners did not assess the damages and benefits to each particular tract of land affected by opening and establishing said road, but did in their report therein, report the damages and benefits to ten acres of said lands when the proof shows that said ten acres was the south side of fifty-five acres laying along said proposed road. There is no assessment of damages or benefits to the balance of the fifty-five acres or the eighty acres adjoining. The same section provides "that the commissioners shall assess the amount of damages to each tract of lands separately together with the names of each party interested therein with a description of the lands on which damages were assessed." This is a jurisdictional fact. Spurgeon v. Bartlett, 56 Mo.App. 355; Anderson v. Pemberton, 89 Mo. 61; Railroad v. Kellogg, 54 Mo. 334; Jefferson County v. Cowen, 54 Mo. 234; Whitley v. Platt Co., 73 Mo. 30. (3) The court had no jurisdiction for the reason the record of the county court does not state or recite that the commissioners were sworn before they entered upon their duties as provided by the statute. True the report of the commissioners does recite that they were sworn before they entered upon their duties and the affidavit is attached. This is not sufficient. The record of the county court must find that they were sworn to perform their duties as such. In re Bledsoe Hill, 200 Mo. 645.

W. T. Rutherford and T. L. Montgomery for respondents.

(1) The notices of the intended application for opening the new road were posted on the evening of October 17, 1910, and the regular term of the county court convened on Monday, November 7, 1910. Thus at least twenty days intervened before the first day of the November, 1910, term of said court. Secs 8057, 10436, R. S. 1909. (2) On the first day of the November, 1910, term of the county court respondents filed and presented the petition for the location of the proposed new road, and on that day appellants appeared in said court as remonstrators and filed their remonstrance to the petition, and their lands being the only lands affected by the proposed new road, they will not now be heard to complain, either as landowners or taxpayers, about the insufficiency of the notice. Secs. 10436, 10437, 10461, 10462, R. S. 1909; Lewis, Eminent Domain (3 Ed.), sec. 580; Railroad v. Maddox, 92 Mo. 469; Searcy v. Clay Co., 176 Mo. 493; Banbie v. Issman, 142 Mo. 499; Spurdock v. Dorman, 182 Mo. 249. (3) The remonstrators in the county court (appellants here), having appeared at the hearing on the petition in the county court, they cannot now object to the want of a proper notice to other persons, if any, affected by the location of the proposed new road. Lewis, Eminent Domain (3 Ed.), sec. 584; Ross v. Supervisors, 1 L. R. A. (N. S.) (Iowa) 431; Walpert v. Newcomb, 106 Mich. 357; Hauser v. Burbank, 117 Mich. 642; Brady v. Hayward, 114 Mich. 326; Carr v. Boone, 108 Ind. 241; Hurst v. Martinsburg, 80 Minn. 40; Woodworth v. Spirit Mound Twp., 10 S.D. 504. (4) The notices of the intended application for the new road having been posted on October 17, 1910, and the first day of the next regular term of the county court, being the one beginning Monday, November 7, in computing the time in determining whether "at least" twenty days' notice was thereby given "before" the first day of the regular November term of said court, the day the notices were posted (October 17) should be excluded and the first day of the term (Monday, November 7), should be included. Sunday, November 6, 1910, should not be excluded. Sec. 8057, R. S. 1909; State v. Fleetwood, 143 Mo.App. 699; State v. Brown, 130 Mo.App. 217; State v. Polk, 144 Mo.App. 329; Sappington v. Lenz, 53 Mo.App. 49-51; Evans v. Railroad, 76 Mo.App. 469; State ex rel. v. Stuckey, 78 Mo.App. 545; Hahn v. Lang, 122 Mo. 605; Gray v. Worst, 129 Mo. 130; Keys v. Keys, 217 Mo. 64. (5) It is an established rule that when notice of so many days is required by statute, order of court, or written instrument, before a certain thing is to be done, or a certain event is to occur, the day of giving, serving or publishing the notice is to be excluded and the last day is to be included, so that if the act is done or the event occurs on the last day, it is sufficient. 38 Cyc. 322-d; Richter v. State, 156 Ala. 127; Wilson v. Creditors, 55 Cal. 476; Misch v. Mayhew, 51 Cal. 514; Wahl v. Nauvoo, 64 Ill.App. 17; Page v. Weymouth, 47 Me. 238; Walsh v. Boyle, 30 Md. 262; Gantz v. Toles, 40 Mich. 725; Mitchell v. Woodson, 37 Miss. 567; Hall v. Cassidy, 25 Miss. 48; Taylor v. Corbiere, 8 How. Pr. 385; Jackson v. Van Valkenburg, 8 Cow. 260; Irving v. Humphreys, Hopk. 364; People v. Marsh, 2 Cow. (N. Y.) 493; Hicks v. Ins. Co., 60 F. 690, 9 C. C. A. 215; People to use v. Barry, 18 L. R. A. (Mich.) 337; State ex rel. v. Eggleston, 34 Kan. 714; State v. Water Co., 56 N. J. L. 422; Coe v. Railroad, 27 Minn. 197. (6) Where the words "at least" are used they do not change the requirement of the number of days or affect the rule that either the first or last day shall be excluded and the other day included, or change the requirement into one of entire days. State v. Water Co., 56 N. J. L. 422; Sappington v. Lenz, 53 Mo.App. 44; Stebbins v. Anthony, 5 Colo. 348; Arnold v. Nye, 23 Mich. 286. (7) It is only when an act is to be done on Sunday that the day is to be excluded under the statutory rule of computation. Robinson v. Foster, 12 Iowa, 186; Conklin v. Marshalltown, 66 Iowa, 122; Merritt v. Bank, 100 Ga. 147, 38 L. R. A. 749; Evans v. Railroad, 76 Mo.App. 468; Jordan v. Railroad, 92 Mo.App. 85; Bank v. Williams, 46 Mo. 17; Cattell v. Pub. Co., 88 Mo. 356; State v. Harris, 121 Mo. 447; Maloney v. Railroad, 122 Mo. 115; State v. May, 142 Mo. 135; Keys v. Keys, 217 Mo. 64. (8) It is the rule in most jurisdictions, including Missouri, that intervening Sundays, that is, Sundays which fall on neither the first nor last day, are to be included in computing a period of time. 38 Cyc. 332; State v. Green, 66 Mo. 631; Russell v. Croy, 164 Mo. 93; Patchin v. Bousack, 52 Mo. 431; Porter v. Paving & Const. Co., 214 Mo. 15; Wilkinson v. Costello, 14 Ga. 122; Gordon v. People, 154 Ill. 664; Womack v. McAhren, 9 Ind. 6; Matthews v. Arthur, 61 Kan. 455; Cressey v. Parks, 75 Me. 387; State v. Wheeler, 64 Me. 532; Robbins v. Holman, 11 Cush. 26; Thayer v. Felt, 4 Pick. 354; Corey v. Hiliker, 15 Mich. 314; Anderson v. Baughman, 6 Mich. 298; King v. Dowdall, 2 Sandf. 131; Broome v. Wellington, 1 Sandf. 664; Brown v. Smith, 9 Johns. 84; Drake v. Fletcher, 50 N.C. 410; Craig v. Ins. Co., 80 S.C. 151; Wood v. Galveston, 76 Tex. 26; Payton v. State, 35 Tex. Cr. 508; Swift v. Wood, 103 Va. 494; Bowles v. Braner, 89 Va. 466. (9) The words "before" when used as to time in a statute may be held to mean inclusive, as well as exclusive. 5 Cyc. 679; Webster v. French, 12 Ill. 302. (10) Filing a proper petition for the new road with the clerk of the county court on the first day of the November term, 1910, was a presentation thereof to the county court within the meaning of section 10436. Keys v. Keys, 217 Mo. 65. (11) A...