Zielda Forsee Investment Company v. Phoenix Brick & Construction Company
| Decision Date | 07 May 1910 |
| Citation | 126 S.W. 788,143 Mo.App. 357 |
| Parties | ZIELDA FORSEE INVESTMENT COMPANY, Respondent, v. PHOENIX BRICK & CONSTRUCTION COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. C. A. Mosman, Judge.
AFFIRMED.
Charles F. Strop and Eugene Silverman for appellant.
(1) The action of the court in the grading proceedings was proper. No person claimed damages and there was no necessity or even propriety in appointing commissioners. Sec. 5670, Mo Annotated Stat. 1906. (2) The record shows that in the grading proceedings the court had jurisdiction of the subject-matter and of the parties; of the subject-matter by the certified copy of the ordinance and plat filed, of the parties by the order of publication. The judgment entered stands unreversed and unappealed from. If the action of the court in failing to appoint commissioners was improper, it was but an irregularity or error in the conduct of those proceedings, and could have been raised only by appeal or direct proceeding and not in this action. Burke v. Kansas City, 118 Mo. 309; State v. Miller, 110 Mo.App 542; Lovitt v. Russell, 138 Mo. 474; Union Depot Co. v. Frederick, 117 Mo. 151; Secombe v Railway, 23 Wall. 108, 23 L.Ed. 69; Railroad v Pound, 22 Ill. 399; Tuller v. Detroit, 97 Mich. 597; Railroad v. Railway (Va.), 40 S.E. 20; Choate v. Railway, 39 So. 218; Black on Judgments, secs. 245, 261.
Eastin & Corby for respondent.
In proceedings of this kind, where the method of procedure is summary, the statute which gives the remedy must be strictly pursued. Compliance with every essential prerequisite must not only be had, but must affirmatively appear on the face of the proceedings or else they will be possessed of no validity whatever. And this doctrine obtains in courts of general as well as in courts of limited jurisdiction. These summary and statutory proceedings are in derogation of the common law and common right, and should be confined within the precise boundaries laid down by the statute which gives origin to such extraordinary remedies. Cunningham v. Railroad, 61 Mo. 35; Railroad v. Campbell, 62 Mo. 588; Ellis v. Railroad, 51 Mo. 203; Whitney v. Platte Co., 73 Mo. 31; Drainage District v. Campbell, 154 Mo. 157; Wire v. Laring, 54 Mo.App. 264; Fore v. Hoke, 48 Mo.App. 259; Anderson v. Pemberton, 89 Mo. 64; Railway v. Lewright, 113 Mo. 666; Gates v. Crandall, 132 Mo.App. 419; Williams v. Kirby, 169 Mo. 628; In re Bledsoe Hill, 200 Mo. 642.
Charles F. Strop and Eugene Silverman, for appellant, on motion for rehearing.
(1) The decision of this court holding the judgment rendered in the grading proceedings subject to collateral attack is contrary to the settled law of the State. Wilhite v. Wolf, 179 Mo. 472; Burke v. Kansas, 118 Mo. 309; State v. Miller, 110 Mo.App. 542; Lovitt v. Russell, 138 Mo. 474; Union Depot Company v. Frederick, 117 Mo. 151. (2) The court misconceived the meaning of the term "subject-matter," as applied to jurisdiction of courts. By jurisdiction of the subject-matter is meant the power to hear cases of the kind and class of the one presented to the court; the term has no reference to acts done in the particular case upon hearing. Hope v. Blair, 105 Mo. 93; Hughes v. Cuming, 165 N.Y. 95; State v. Wolever, 127 Ind. 306; Freeman on Judgments (3 Ed.), sec. 119; Black on Judgments, sec. 240.
This is a suit to cancel certain taxbills issued as a lien against certain real estate of the plaintiff's situated in the city of St. Joseph, a city of the second class. The taxbills were issued in part payment of the work of grading Twenty-second street. The petition describes the land owned by plaintiff against which the taxbills were issued, the passage of the ordinance for the grading of the street by the common council of the city, the execution of the contract for the work by the defendant and the issuing of the taxbills and their delivery. It is alleged that the taxbills are void by reason of certain defects in the proceedings before the circuit court of Buchanan county, which were authorized under sections 5664 to 5667, of the Revised Statutes of Missouri 1899, for the assessments of benefits and damages to landowners; that the price was so exorbitant as to be fraudulent; and that the assessment of the cost of the work was erroneous. Other objections were made but we understand they were not inquired into on the trial.
The answer admitted the passage of the ordinance, the execution of the contract and the issuing of the taxbills, but denied all the other allegations of the petition. By way of cross-bill the defendant alleged the validity of the taxbills and asked for judgment thereon.
The charter of the city of St. Joseph provides that before any grading shall be done upon the streets or highways of the city, the mayor shall cause a certified copy of the ordinance, providing for such grading, to be filed in the circuit court of Buchanan county and the damages and benefits to be ascertained as provided by said sections of the statute. The mayor caused a certified copy of the ordinance to be filed and an order of publication was made thereon and the cause was regularly set for hearing. At the return day, no claim for damages having been filed by any of the landowners, the court authorized the city to proceed with said grading and decreed, "that all persons owning property abutting upon said street, within the limits of said proposed grading, be and the same are hereby precluded from making any claim for damages on account thereof, and that the costs of the proceedings be taxed against the city of St. Joseph."
The contention of plaintiff is that the proceedings were void for the failure of the court to appoint commissioners to assess benefits and damages to abutting landowners. Section 5665 was amended so as to make it read as follows:
"No street, alley or other public place in any city of the second class shall be graded so as to change the existing grade thereof, unless the property-owners to be affected thereby petition therefor and waive all claim to damages on account thereof, or unless such damages shall be first ascertained and paid as hereinafter provided, and any special taxbills issued for grading in violation of this law shall be void." Session Acts, 1903, p. 74.
Section 5670, providing for the ascertaining of damages reads as follows:
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