Thompson v. The Chicago, Santa Fe & California Railway Company
| Decision Date | 23 May 1892 |
| Parties | Thompson, Appellant, v. The Chicago, Santa Fe & California Railway Company |
| Court | Missouri Supreme Court |
Appeal from Carroll Circuit Court. -- Hon. J. M. Davis, Judge.
Affirmed.
J. T Montgomery for appellant.
(1) The circuit judge had no jurisdiction to appoint commissioners in either cause. First. Notice to a non-resident of the county in which a petition for the condemnation of private property is pending is insufficient unless such notice contains a description of the property sought to be taken. Second. A writ without the copy of the petition is not sufficient. R S. 1879, secs. 3489, 3493; Railroad v. Taylor, 43 Mo. 35. (2) Where non-residents and residents of the county and judicial circuit in which the property sought to be taken is situated are joined and united in the same petition, the rights of the non-residents are not affected or divested thereby. Railroad v. Kellogg, 54 Mo. 335; Railroad v. Carter, 85 Mo. 448. (3) The petition for the condemnation of lots 18 and 19 should have been heard on the day named in the writ, the fifteenth day of June, and not on the first day of July, as the record of the proceedings discloses. (4) The record and proceedings to take private property for public use must show, in order to give the court jurisdiction of the subject-matter of the action, that the commissioners appointed to assess the damages were disinterested. R. S. 1879, sec. 894; State ex rel. v. St Louis, 1 Mo.App. 503; Springfield v. Whitlock, 34 Mo.App. 642; Judson v. Bridgeport, 25 N. J. L. 309. (5) Before a railroad company can appropriate land for its roadbed and depot grounds there must be a judgment of record vesting them with that right. The record and proceedings under consideration show no such judgment. (6) The declarations of law asked by the plaintiff should have been given. "In proceedings of this nature in derogation of common law and right, the utmost strictness is required in order to give it validity; unless it appear on the face of the proceedings that every essential prerequisite of the statute has been fully complied with, every step will be coram non judice."
Gardiner Lathrop, T. J. Whiteman and S.W. Moore for respondent.
(1) The petition in the condemnation proceedings stated all the necessary jurisdictional facts; personal service was had on J. C. Thompson and H. Lamm, his trustee, and, therefore, the court had jurisdiction to appoint commissioners and proceed with the case. Quayle v. Railroad, 63 Mo. 471. (2) The court having jurisdiction of the subject-matter and of the person of the defendant Thompson, its judgment cannot be assailed for mere errors or irregularity in this collateral proceeding. 1 Black on Judgments, sec. 261; Perryman v. State, 8 Mo. 208; State v. St. Germans, 31 Mo. 230; Railroad v. Railroad, 94 Mo. 535; Kane v. McCown, 55 Mo. 181; Secombe v. Railroad, 23 Wall. 108; Sedalia v. Railroad, 17 Mo.App. 105; Evans v. Haefner, 29 Mo. 141. (3) The omission of the order appointing commissioners to recite that they are "disinterested" freeholders is not a jurisdictional defect. Their qualification is a matter of proof, to be passed upon and determined by the court, and cannot be inquired into in a collateral proceeding. Quayle v. Railroad, 63 Mo. 465; Kellog v. Price, 42 Ind. 360; Brown v. McCord, 20 Ind. 270; Appeal of Rood, 17 Serg. missioners v. Espen, 12 Kan. 531; Huling v. Kaw & R. 388; Railroad v. Morton, 27 Mo. 317, 321; Com-Valley Co., 130 U.S. 559. (4) The presumption is that they were disinterested. Appeal of Rood, 17 Serg. & R. 388. (5) The court had the power to send its summons to plaintiff Thompson in Pettis county. He could refuse to be joined in the same suit with his codefendant, if he had desired, -- it was a personal privilege which he could waive or avail himself of. Railroad v. Lumber Co., 37 F. 3; Cooley v. McArthur, 35 F. 372; Purcell v. British L. & M. Co., 42 F. 465; Zambrino v. Railroad, 38 F. 449. (6) While the time named in the notice to Thompson of the day on which the petition for condemnation would be heard was June 15, it was competent for the court to continue the matter, for want of service, until July 1, and to appoint commissioners on that day. Railroad v. Kellogg, 54 Mo. 334. (7) A judgment is not necessary in condemnation proceeding. The report of the commissioners, approved by the court, is the company's "muniment of title." Railroad v. Carter, 85 Mo. 451; Railroad v. Story, 96 Mo. 611, 621. (8) The law does not require that the notice to be served on a resident land-owner shall contain a description of the property sought to be appropriated, or that it shall be accompanied by a copy of the petition. A notice in the "form of a summons" is all that is required. Cory v. Railroad, 100 Mo. 282. (9) The motion and affidavit served on plaintiff Thompson, requiring him to set up his claim to the condemnation money, and the judgment rendered by the court thereon, constitute a bar to this action.
In 1887, plaintiff was holder of a note for $ 1,400 secured by deed of trust on lots 17, 18 and 19, block 6, in the town of Norborne, Carroll county, Missouri, B. F. Sanders being the owner of the equity of redemption in lot 17, and Jennette Duggan and husband in lots 18 and 19.
On the second day of June, 1887, the defendant's grantor, a railway company, instituted condemnation proceedings in the circuit court of Carroll county to acquire the title to said lot 17 for a right of way and depot grounds, making plaintiff, B. F. Sanders, and H. Lamm parties, the latter being the trustee in said deed of trust. Owners of other lots in said town were also joined as defendants. Plaintiff and Lamm then resided in Pettis county, and the other defendants in Carroll county.
The judge of the circuit court in chambers ordered that defendants be notified, and accordingly the clerk of the circuit court of Carroll county issued two writs of summons directed to the sheriffs of said Carroll and Pettis counties, directing that they summon said parties "to appear before the judge of the circuit court of Carroll county, at the law office of John E. Wait, in the city of Chillicothe, Livingston county, on the seventeenth day of June, 1887, at the hour of one o'clock P. M., then and there to answer unto the petition of the Chicago, Santa Fe & California Railway Company of Iowa, and which petition will then and there be heard." The parties were duly served with copies of the summons more than ten days prior to the day set for the hearing. No one appeared, and the judge appointed commissioners, who afterwards filed their report in said circuit court assessing the damage at $ 500. Plaintiff and Lamm were duly notified of the filing of this report as required by section 896, Revised Statutes, 1879.
The railway company deposited the $ 500 with the clerk as required by statute. Sanders then moved the court to order the clerk to pay this money to him, supporting his motion by an affidavit that he and not Thompson was entitled to it. A copy of this motion and affidavit was served on Lamm and Thompson, and they failing to appear the court in due time made an order for the clerk to pay the money to Sanders, which was done.
On June 3, 1887, said railway company instituted proceedings in said court to condemn said lots 18 and 19 for its right of way and depot grounds, making Duggan and wife, who were then residents of Iowa, and plaintiff and said Lamm parties. A summons similar in form and substance to the one in the other case was issued and served on plaintiff and Lamm on the fourth day of June, 1887, the return day being June 15. On the ninth day of June, 1887, the court made an order of publication as to Duggan and wife, which was published notifying them that the petition, the substance of which was recited therein, would be heard on the first day of July, 1887, and on that day, no one appearing, the judge appointed commissioners, who afterwards reported in due form, assessing the damages at $ 950, which amount the railway company paid to the clerk of the court as required by law. Plaintiff and the other parties were duly notified of the filing of this report, and, no exceptions being taken, the report was, by said court, confirmed.
The record fails to show who got this $ 950, or whether anyone has received it. The railway company took possession of these three lots, tore down some buildings on them, and has used them ever since for depot and right-of-way purposes.
Plaintiff foreclosed the deed of trust in 1888, and bought the lots, taking a deed from the trustee to himself, and brought this suit to recover damages for the destruction of the buildings on the property and for possession. The defendant set up the condemnation proceedings above mentioned as a defense. The court gave judgment for the defendant, and the plaintiff appealed.
The only question presented by this record for decision is, whether the condemnation proceedings were void, and, therefore, subject to collateral attack in this action. The irregularities in these proceedings, which it is claimed render the attempted condemnation void, will be considered in their order.
I. Condemnation proceedings are in the nature of proceedings in rem in the same sense that attachments, foreclosure of mortgages and other liens are proceedings in rem. The statute requires notice to be given the owners of the land to be affected, and it must be given in conformity to the statute.
The exercise of the right of eminent domain is in derogation of common law and common right, and the utmost strictness is required to give it validity. ...
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