188 Mo. App. 567 | Mo. Ct. App. | 1915
This is an appeal by Lelia L. Hayes and Lillie E. Lyle from an order overruling a
On July 2, 1913, appellants not having paid the benefits assessed against their property in the benefit district, which assessments were then long past due, the special execution involved herein was issued, returnable on the first day of the September, 1913 term, it being September 8th of that year.
On the 9th of July, appellants filed motion to quash said execution and on the 20th of that month, they filed an amended motion to quash which was heard
The ground of appellant’s motion is that the trial court, in the condemnation proceeding, obtained no jurisdiction. This claim grows out of the following facts:
The condemnation proceeding was instituted during the September term, September 28, 1911, and at that time the circuit court of Jackson county was composed. of eight divisions, seven of which held their meetings in separate court rooms in the county courthouse in Kansas City, and one at the county courthouse in Independence. At the beginning of each term the various judges sit en banc and select one of their number to act as Assignment Judge • for that term, and his division is called the Assignment Division. A part of his duties is to assign causes to the various divisions for trial.
On the day the condemnation proceeding was filed, the Assignment Judge assigned it to Division No. 1 for further hearing. And on the same day Division No. 1 made and entered of record an order of publication in due and proper form notifying all concerned in said proceedings that on November 3, 1911, in the court room of Division No. 1 of the circuit court of Jackson county, Missouri, at Kansas City, Missouri, at the county courthouse in Kansas City, Missouri, a jury would be empaneled to ascertain and fix the compensation to be paid for the property taken or damaged and also the benefits, if any, to be assessed against the property in the benefit district, and to make the assessments therefor. In this order of publication it was provided that the order should be published in
On November 2, 1911, it being still the September term, and on the day before the day set in the order of publication for the empaneling of the jury, Division No. 1, for good cause shown, made and entered of record an order that the proceeding be returned to the Assignment Division. The next day, November 3, 1911, proof of the order of publication was filed in Division No. 1 showing that the order was published in the designated paper for the requisite length of time and that a copy of said order of publication was personally served upon each of the appellants on October 11, 1911, in Kansas City.
The same day, in the Assignment Division, an order was entered of record reciting that Kansas City appeared as did all persons and parties interested in this proceeding, whereupon the proceeding was assigned to Division No. 2 of said court for further hearing. Thereafter on the same day, in Division No. 2, an order was entered of record reciting that Kansas City appeared as did all parties and persons interested in said proceeding, and that Kansas City filed and submitted proof of the lawful publication and personal service of the order of publication, and the court found
It will be observed from the foregoing that the order of publication specified the court room of Division No. 1 as the place where the jury would be empaneled and the hearing had, whereas, although the order of publication was filed in the cause in Division No. 1, yet, before anything else was done in that Division, the proceeding was sent back to the Assignment Division and there reassigned to Division No. 2 where the proof of publication of the order of publication and of the personal service upon appellants herein was found sufficient, and where the jury was empaneled and the trial had. For this reason, appellants contend that Division No. 2 acquired no jurisdiction. This contention is based on the theory that although the several divisions of the circuit court of Jackson county constitute but one court, yet when a cause has been assigned to any división, it obtains sole and exclusive jurisdiction thereof independent of each of the other divisions. Appellants do not so state, but their complaint necessarily involves the further assumption that even though a case, after it has been assigned to one division, be sent to another division in
When want of jurisdiction is asserted it is not, always clear what is meant. The jurisdiction of a’ court to render a binding judgment depends upon several things: First, whether it has been given authority of law to hear the class of cases in which the judgment is sought? Second, if so, has the party seeking the aid of the court properly invoked the power of the court to act by taking the necessary steps to that end, as by filing such a pleading as will show him entitled to have the machinery of the court put in motion in his behalf. These two being settled in the affirmative, there remains a third question: Have the opposite parties, or those upon whom the judgment will operate, or whose interests it will affect, been given the required notice?
We do not understand appellants as questioning the jurisdiction of the circuit court of Jackson county to try proceedings of the nature involved herein. Nor is there any contention over the regularity of the steps taken to invoke that jurisdiction up to the time the order of publication was made, nor indeed up to and including the publication of the order of publication and the personal service of said order upon appellants. To that point all the requirements of the Charter were complied with. Whatever complaint appellants have, or can raise, as to lack of jurisdiction, grows out of what thereafter took place in the circuit court of Jackson county, Missouri. And a careful analysis of the various points made by them, in support of their claim of want of jurisdiction, discloses that, with possibly one exception, they all have to do with the third question herein above mentioned, namely, were appellants, upon whose interests the judgment is now about to operate, duly notified? We will dispose of this question now and take up the possible exception later.
But appellants say the judgment is absolutely void from the beginning, and here comes in the possible exception noted above.
The claim that the judgment is absolutely void must, in order to he valid, rely in its last analysis upon the second of the three questions relating to jurisdiction, namely, has the party seeking to invoke the jurisdiction af the court in the particular case taken the proper steps to do so ? That is, has he made such application to the court and has the court given such notice as will enable it to proceed at all? And appellants’ contention must stand or fall upon the answer to this question. For, if the court was, through the steps taken, enabled to proceed at all, then whatever violations of lawful procedure were thereafter committed, were mere irregularities which the appellants, by their conduct above noted, have waived.
To maintain their position that the judgment is void ab initio, appellants say that, while it is true that the several divisions of the circuit court of Jackson county constitute hut one court, yet when a cause is assigned to one division, that one obtains the sole and exclusive jurisdiction over such cause independent of every other division. Hence the true statement of appellants ’ complaint, on the point now considered, is that Division No. 2 is a separate and distinct court from Division No. 1 having a jurisdiction exclusively
It is no doubt true that when a cause has been assigned to a division, that one has jurisdiction there-over to the exclusion of every other division, 50 long as the case remains in the division to which it has been assigned. But appellants overlook or ignore the fact that in this case, the cause was not retained in Division One but was sent back to the Assignment Division and by it reassigned to Division No. 2 according to law. In this respect the case is entirely- different from the cases of State ex rel. v. Allen, 235 Mo. 298; State ex rel. v. Eggers, 152 Mo. 485; Haehl v. Wabash R. Co., 119 Mo. 325, and others cited by appellants in support of their contention. In these cases the holding is merely that when a case has been assigned one division and is still there, the jurisdiction of such division is exclusive. But that has no application to the facts of this case where the division to which the case was assigned had surrendered its jurisdiction in the manner provided by law, and the case had been lawfully sent to another division. Indeed, some of the cases cited by appellant recognize the jurisdiction of the other division when the case has properly come to it. In the Haehl case, supra, at page 337 it is said, “after a case has thus been assigned to a judge for trial in special term, the jurisdiction to try the same and to transact such other business as is incident to the trial thereof, is vested solely in such judge, and cannot be exercised by any of his associates, unless the case itself be sent to such associate in the manner provided by lom.” (Italics ours.) In Goddard v. Delaney, 181 Mo. 564, cited by appellants it is said at page 581, “A suit is not begun in a division; it is begun in the circuit court, and, under the rules of the court is assigned to a division . . . Causes, however, under rules, may be transferred from one division to another, and the court
Again, appellants admit that the several divisions constitute but one court, the circuit court of Jackson county, Missouri. And the charter provides that the proceeding must be brought in that court. [Sec. 11, Art. 13, Kansas City Charter, 1909.] A suit is not brought in a division. It is brought in the court and afterward assigned to a division. All the papers necessary to be filed to invoke the power of the court to start were filed, and upon them the order of publication was issued, and the appellants notified. The order of publication was in due and proper form. It directed how the order should be published and also that it should be personally served. The Charter authorizes this. [Par. 2, See. 11, Art. 13.] These things were done in strict conformity to law and the Charter requirements. Paragraph 4 of section 11 of article 13 of the Charter makes the affidavit of the publisher, accompanied by a printed copy of the order, prima-facie evidence of such publication. And paragraph 5 of said section 11 authorizes the service of such order (when the court directs personal service to be made) by a certain officer, and makes his return evidence of the facts therein. The order of publication was filed in Division No. 1 by the circuit clerk, who is clerk of the entire court, and to it was attached the affidavit of the publisher as required, and a return of personal service
If appellants rights were affected by the empaneling of the jury in another room than the one specified in the order of publication and the personal service thereof upon them, this was waived by. them when they accepted the result of the judgment by appearing and accepting the damages awarded them, or at least a large part thereof, and using the same in payment of
They were undoubtedly notified to appear in Division No. 1, and if they had done so, of which there is no proof, they would.have learned that the cause had been sent, according to law, to Division No. 2. In fact, the record of the case would have disclosed that fact to them since the evidence shows that the entire record of condemnation eases, of this character is kept in one record and by one clerk. It is not necessary, however, for us to decide whether, had they appeared in Division No. 1 in answer to the notice they had, they would have been required to ascertain what had become of the matter, since the lack of opportunity to be present at the empaneling of the jury, if it constitutes an irregularity in the court’s procedure, was waived by them in the manner aforesaid.
For the foregoing reasons we are of the opinion that the order and judgment overruling appellants’ motion to quash the execution should be affirmed. It is so ordered.