Williams v. Kirby

• Decision Date: 27 October 1902
• Citation: 70 S.W. 140,169 Mo. 622
• Court: Missouri Supreme Court
• Parties: WILLIAMS et al. v. KIRBY.

70 S.W. 140

169 Mo. 622

WILLIAMS et al. v. KIRBY.

Supreme Court of Missouri, Division No. 2.

October 27, 1902.

RIGHT OF WAY — LEVEE PURPOSES — NOTICE — PETITION — DESCRIPTION — VARIANCE — UNCERTAINTY — JURISDICTION OF SUBJECT-MATTER — APPEAL — CIRCUIT COURT — COUNTY COURT — JURISDICTION OF PARTIES.

1. Laws 1893, p. 200, § 24, provides that the proceedings for condemning land for levee purposes in a certain district shall be conducted in

the same manner as for obtaining a right of way for a public road. Rev. St. 1889, § 7796, as amended by Laws 1893, p. 222, provides that the petition in the county court for the condemnation of right of way for a road shall "specify" its "termination," and section 7797 provides that a notice of the intended application for the road shall be posted at the proposed termination of said road. A notice posted in a proceeding to condemn a right of way for levee purposes fixed the termination thereof at the intersection of a certain road with the south boundary line of survey 1,051, while the petition fixed it at "a point in what is known as the Highlands in survey 1,051." Held that, since the notice was jurisdictional, anything done towards condemning land of the defendant not embraced within its provisions rendered the entire proceedings a nullity.

2. The description of the terminus in the petition was so uncertain as to confer no jurisdiction on the county court under the section requiring its "specification" therein.

3. Rev. St. 1899, § 1788, provides that appeals from the county court shall be prosecuted in the same manner as appeals from justices of the peace to circuit courts. Rev. St. 1889, § 6334, provides that, where bond and affidavit for appeal have been properly filed in the justice court, and the appeal returned to the appellate court, it shall be considered as allowed by the justice of the peace, though no entry thereof appear on his records. In an appeal from the county court to the circuit court, where the affidavit and bond were seasonably filed, and the clerk of the county court returned the papers and a transcript of the proceedings therein to the clerk of the circuit court, but where no order granting the appeal was made by the county court, the appeal will be considered as allowed without the order.

4. Though the county court has obtained no jurisdiction of the subject-matter of an action to condemn land, the circuit court and supreme court will, on proper successive appeals, acquire jurisdiction of the parties.

Appeal from circuit court, New Madrid county; Henry C. Riley, Judge.

Action to condemn land for levee purposes by J. J. Williams and others against Daniel N. Kirby. From a judgment of the circuit court dismissing defendant's appeal from the county court, defendant appeals. Reversed, and proceedings dismissed.

Charles Nagel and Daniel N. Kirby, for appellant. J. R. Bruer and R. B. Oliver, for respondents.

BURGESS, J.

This proceeding was begun in the county court of New Madrid county by plaintiffs to condemn for levee purposes a right of way over certain lands belonging to the defendant. The strip of land sought to be condemned was described in the posted notice as follows: "A strip of land 112 feet wide, beginning on the north boundary line of survey No. 2,928, running in a northerly direction to the south boundary line of survey No. 1,051, and lying west of and immediately adjacent to the Point Pleasant and New Madrid public road." After this notice was posted, a petition for condemnation was filed in the county court, in which the strip of land was described as follows: "A strip of land 112 feet wide running in a northerly direction, and lying west of, and immediately adjacent to, and alongside of what is known as the `New Madrid and Point Pleasant Road,' to a point in what is known as the `Highlands,' in survey 1,051, section 17, township 21, range 14 east." The petition was filed August 6, 1895. On August 7, 1895, the county court appointed commissioners to view and assess the strip of land, describing it in the same terms used in the petition. On November 4, 1895, the commissioners filed their report, describing the land assessed by them as follows: "The following described land in the county of New Madrid, Missouri, to wit, section No. 17, township No. 27, range 14 east." On February 5, 1896, the county court rendered judgment of condemnation, describing the strip as follows: "A strip of land 112 feet wide, beginning on the north boundary line of survey 2,928, in section 17, township 21, range 14 east, running in a northern direction, and lying east of and immediately adjacent to what is known as the `New Madrid and Point Pleasant Public Road,' to a point in what is known as the `Highlands,' in survey 1,051, in section 17, township 21, range 14 east." On February 13, 1896, the defendant filed in the office of the clerk of the county court his affidavit for appeal, notice of appeal duly served, and an appeal bond. On February 22, 1896, at the next term of the county court the appeal bond was approved, but the court made no order allowing the appeal. The clerk of the county court returned the papers in the case to the clerk of the circuit court of New Madrid county, in which court the plaintiffs filed a motion to dismiss the appeal on the ground that the county court of New Madrid county had never granted an appeal. The circuit court of that county, at the September term, 1897, sustained plaintiffs' motion, and dismissed defendant's appeal to the circuit court. From this judgment of dismissal an appeal was taken to this honorable court.

Defendant has filed in this court a motion to dismiss these proceedings on the ground that the record discloses that the county court had no jurisdiction to render judgment of condemnation, and hence neither the circuit nor the supreme court acquired jurisdiction of this appeal. But as the case has been fully briefed by defendant, which covers all the points presented by the motion to dismiss, we will dispose of the appeal upon its merits regardless of that motion. It may be conceded at the outset that in proceedings to condemn...