78 Mo. 356 | Mo. | 1883
This was a proceeding by the City of Kansas to condemn private property for the opening and extension of Sixth street from Tracy avenue to Woodland avenue in said city. The proceeding was instituted in pursuance of ordinance No. 21,039 of the common council of said city, which was approved on the 7th day of June, 1881. The ordinance prescribes the boundaries within which the property was to be condemned, and declares that “ all private property within said boundaries is hereby taken and condemned for public use, as an extension of said Sixth street, and just compensation therefor shall be assessed, collected and paid according to law.” The ordinance also prescribes the limits within which “ private. property shall be deemed benefited by reason of the proposed improvement, mentioned in the preceding section, and be assessed and charged to pay just compensation therefor.”
The cause was first tried before the mayor, then taken by appeal to the circuit court, where it appeared in division No. 2 of said court. Hon. E. M. Black, judge of division No. 2, was not only interested in the suit as owner of property lying within the limits of assessment, but he was a party to the record, his name being included in the original notice to the property owners subject to charge and assessment. There being no consent of the parties to a trial by His Honor Judge Black, the appellants requested him to send the case to division No. 1, presided oyer by Hon. Turner A. Gill, judge of that division. This request was refused by Judge Black for the reason that it appeared from the
The parties having failed after this ruling to select a special judge, an election was held by the clerk, which resulted in the selection of C. O. Tichenor, Esq., an attorney of said court. The case was tiled by the special judge so elected, and resulted in a complete condemnation of the property required for the extension of Sixth street, and a-very general assessment of charges for benefits on account, of the extension. It seems from the record that appellant, was adjudged $1,500 damages for his property within the limits of condemnation, and $1,000 benefits to his property within the limits of assessment for benefits, which would leave him entitled to a balance of $500 on his money judgment. In his appeal to this court, he presents two questions, which were raised by his motion for a new trial. They are as follows: 1st, That the cause should have been sent to the other division of the court; 2nd, That there-, was no judicial determination whether the property attempted to be taken was really for a public use.
It is apparent, therefore, that the appellant lost nothing in the refusal of Judge Black to transmit the cause to the other division of his court. No benefit or advantage could accrue to the appellant in transmitting the cause to the other division for the mere purpose of having the election of a special judge after such transmission. That election must be conducted'by the clerk of the court. If the case had been sent to Judge Grill for that purpose, the election would have been conducted before the same clerk, in the same court, (either division is the circuit court,) and before the same Mr. It would have been in all its essential features the same election which in fact did take place. There is no good reason why this cause should be reversed in order to have an election of a special judge, after transmission of the case to another division of the circuit court. It would be repeating what has already been done in the same court. The case was properly disposed of by Judge Black under the 11th section of the act of March 24th, 1879, reorganizing the 24th judicial circuit. Reasons existed why both judges could not try the case. No change of venue was applied for, and the case was “ otherwise disposed of according to law.” Sess. Acts 1879, p. 82.