15 Mo. App. 25 | Mo. Ct. App. | 1884
delivered the opinion of the court.
This is a proceeding instituted by the city of St. Louis, under the provisions of its charter, and of an ordinance purporting to be passed in pursuance thereof, to establish and open Benton Street* in said city, from Jefferson Avenue to Garrison Avenue. Commissioners were appointed, who
I. The petition fails to show that the ordinance on which the proceeding is based was passed on the unanimous recommendation of the board of public improvements or on the petition of the owners of the major part of property fronting on the proposed street, as required by section 2, of Article VI., of the charter. Rev. Stats. 1606. This section reads as follows: “Whenever the assembly shall provide by ordinance for establishing, opening, widening, or altering any street, avenue, alley, wharf, market-place, or public square, or route, or sewer, or water-pipe, either on the unanimous recommendation of the board of public improvements, or on the petition of the owners of a major portion of the ground fronting thereon, and it becomes necessary for that purpose to appropriate private property, the city counsellor, in the name of the city of St. Louis, shall apply to the circuit court of the eighth judicial circuit, or to any one of the judges in vacation, by petition,” etc. Unquestionably the proper reading of the above language is, that it is only upon an ordinance so passed that condemnation proceedings can be entertained by the circuit court. The question then is, whether, in order to give jurisdiction to the circuit court, to entertain a proceeding thereunder, it is necessary for the petition to show that the ordinance was passed, either on the unanimous recommendation of the board of public improvements or on the petition of the owners of a major portion of the ground fronting on the proposed street. It is a proceeding in which the circuit court exercises a special jurisdiction con ferred by statute, in the exercise of which it does not proceed according to the course of the common lawand the rule in such cases is that the facts showing jurisdiction must
II. The next objection is that, after the original petition had been filed and commissioners appointed thereunder, the court, on motion of the plaintiff, set aside the order appointing the commissioners, and allowed the plaintiff ten days’ time in which to file an amended petition, which was done; and that there was thereafter no new service of process or publication as to any of the defendants. It is argued that, this being a special proceeding, the filing of the amended petition is to be regarded as the commencement of a new suit; that the jurisdiction which the court had acquired over the parties by the original service of process and publication was determined by the filing of the amended petition, and that it was necessary to bring them into court again in the manner prescribed by the charter. It is indeed held in Missouri that the filing of an amended pleading is an abandonment of the original pleading. Ticknor v. Voorhies, 46 Mo. 110, and other cases. But the idea that the filing of an amended petition is in effect the bringing of a new suit, is a novelty which is not sustained by one of the cases cited in the appellant’s brief, nor by any other decision in this State of which we have knowledge. The general doctrine is that, when the parties have been brought before the court by service of process or by publication, they are there for every purposes of the proceeding until it ends. They must notice, without any further steps to give them notice, the amendments of the pleadings, and whatever other steps may be taken in the case until the final judgment. We know of no reason why this principle should not be applicable to special proceedings, as well as to ordinary actions.
IV. If we are right iii holding that it was competent for the city to confer jurisdiction, it equally follows that it was competent for the city to regulate its exercise; and, therefore, the objection that the provisions of the charter respecting the notice to be given, and other steps to be taken in the course of the proceeding, are not in conformity with the provisions of the practice act, which regulates civil actions in the circuit court, is not well taken.
V. The next objection made by the appellant is of more serious consequence. One of the defendants in the proceeding as originally commenced was John E. Scott. Summons having been returned, as to him and certain others, “ not found,” publication was ordered and made. Subsequently, the city counsellor filed an amended petition, which seems to have been, in all respects like the original, except, instead of the defendant John E. Scott, it substituted the unknown heirs of John E. Scott, and prayed for publication as to them. An order of publication was entered, but the record contains no evidence that such publication was ever, in fact, made. Nevertheless, the court proceeded to a decree upon the report of the commissioners, against the unknown heirs of John E. Scott, together with the other defendants. The decree was, for this reason, void as to the unknown heirs of John E. Scott, and, being void as to them, it must be set aside as to the others. Market St. Bank v. Stumpe, 2 Mo. App. 545, 548 ; Holt County v. Harmon, 59 Mo. 165, 172 ; Smith v. Rollins, 25 Mo. 408 ; Pomeroy v. Betts, 31 Mo. 419.
For these errors the decree is reversed and the cause remanded.