251 Mo. 707 | Mo. | 1913
By this suit the plaintiff com* pany seeks to permanently enjoin the defendants from interfering with plaintiff’s enjoyment of its alleged right of way, which it has acquired or is about to ac- ' quire for the purpose of building a railroad from Kansas City, Missouri, to St. Joseph, Missouri. The allegations of the petition are, in substance, as follows:
That the plaintiff is a corporation, duly incorporated under article 11, chapter 12, Revised Statutes of Missouri, 1899, and as such corporation has power to construct and maintain a railroad for public use from the city of Kansas City through the counties of Clay, Platte and Buchanan, to the city of St. Joseph, Missouri; that it has laid out, platted and surveyed its line of railroad between said two points, reciting the sections and townships through which the same runs, and that it has filed its profile maps of said route in the office of the clerk of the county court of each county through which said road is to be made; that plaintiff has secured contracts for deeds for said right of way from a majority of the property-owners along said route, and is intending to build its said road along said route; that it has in good faith begun
The prayer of the petition is, in effect, that defendants and their agents be restrained from continuing the acts complained of, and that upon a hearing, each of such contracts and conveyances taken by defendants in violation of plaintiff’s rights as aforesaid be declared void, that their pretended filing of maps be stricken from the records, and that defendants be permanently enjoined from constructing a railroad upon plaintiff’s right of way, and that plaintiff’s title to its right of way as heretofore appropriated be ratified and confirmed in plaintiff, and for such other relief as to the court might seem just and proper.
The essential portions of defendants’ joint answer are as follows:
“1. These defendants deny that the plaintiff, the Interstate Railway Company, is a corporation duly organized under the laws of the State of Missouri, and allege that if the plaintiff company was ever at any*712 time properly incorporated under the laws of the State of Missouri, and existed as a corporation, it ceased to-so exist by reason of the failure upon its part to comply with the provisions of Sec. 1161 of the Revised Statutes of the State of Missouri, 1899, in that it did not, within two years after its articles of association were filed and recorded in the office of the Secretary of State, begin the construction of its road, and within one year thereafter expend thereon not less than ten per cent on the amount of its capital. ’ ’
(Paragraphs 2 and 3 of the answer admit the incorporation of certain of the defendant companies, and that certain of the individual defendants are officers and agents of defendant companies.)
“4. And these defendants, further answering, deny each and every allegation in plaintiff’s petition contained. ’ ’
(Note: Paragraph 4, as copied, is as it stood after being amended by striking from the original the word “other,” which appeared before the word “allegation,” and by striking out the words “except as the same may be specifically hereinafter admitted,” which appeared after the word “contained.”)
“5. Further answering, these defendants say that the defendant, The Jackson County Junction Railway Company, is a railroad corporation, organized and existing under the laws of the State of Missouri, for the building of a railway from a point about one hundred and seventy feet south of the south harbor line of the Missouri river, as established in 1904 in Kansas City, Missouri, to a point on the State line between the States of Kansas and Missouri, about four hundred and fifty feet north of the southwest quarter of section thirty-one, township fifty-four, range thirty-three west, in Jackson county, Missouri, and about four hundred and eighty feet south, measuring along the State line of Kansas and Missouri, of the south harbor line of the Missouri river established in 1904;
“That these several corporations were organized for the purpose of consolidating them into one continuous line of railway hereafter, runing from a point
- “That pursuant to these plans the Jackson County Junction Railway Company has caused accurate surveys to. be made, and has filed in the office of the county clerk of Jackson county, Missouri, a map showing'its proposed right of way as adopted by its board of directors, together with a profile map of the proposed route, and has taken all other steps necessary and preliminary for the beginning of condemnation proceedings, and has already filed its petition for such condemnation in the circuit court of Jackson county, Missouri, at Kansas City,' which proceeding is now pending in that court, and has proceeded to the point where all necessary parties defendant having been brought into court, commissioners have been appointed’ by the court to assess the value of the lands proposed to be taken by that company in Jackson county, Missouri; and proceedings in condemnation have been had by the Kansas City Junction Railroad Company in Wyandotte count]7, Kansas; all preliminary steps therefor have been taken, commissioners having been appointed, and the award of the commissioners having been filed covering the line of the right of way of that company in Wyandotte county, Kansas, which is all of the line of that company from the Missouri-Kansas line aforesaid to a point on the bank of the Missouri river north of Kansas City, Kansas; and the said Missouri River & Cameron Railroad Company' has had actual surveys made, and has already andl prior to the adoption of any line by plaintiff, or filing of any proper map' by it, filed in the offices of the clerks of Buchanan county, Missouri, and' of Platte
“That in the securing of the right of way and of the lands necessary for the carrying out of the proposed completed railway project, about $159,000 have been already in good faith expended, and the necessary permission has been obtained from the United States Government for the building of a bridge across the Missouri river at the place hereinbefore described for the connecting of the lines of The Kansas City Junction Railroad Company and the Missouri River & Cameron Railroad Company.
“That the several defendant companies and their officers and agents are proceeding in good faith in the securing of the necessary rights for the building and' equipping of a continuous railroad along the lines hereinbefore described.
“That defendants specifically deny that they or either of them, or any agent or employee acting by their authority or by their direction, has wilfully or falsely or maliciously or wrongfully made any representation whatsoever to parties owning lands along the line of the proposed right of way. They have said to landowners along said proposed right of way when the question has arisen, and■ now here reaffirm the truth of such statements, vis.: That the Interstate Railway Company no longer has any claim or right in any part of the lands along the proposed right of way of the Missouri River & Cameron Railroad Company,
Attached to the answer is an affidavit by one of the defendants to the effect that all allegations of paragraph one of the answer are true.
Before replying, plaintiff filed a motion to strike out paragraphs one and five, said motion to strike out assigning as reasons therefor “that said portions of said answer are not responsive to the issues of plaintiff’s petition; they are wholly immaterial to the issues of this case, and constitute no defense to the cause of action in plaintiff’s petition set forth.” This motion to trike out was overruled by the court. Plaintiff then filed a demurrer to paragraph one of the answer, alleging as grounds of demurrer, “that said paragraph fails to state facts sufficient to constitute a defense to this action, and that the defendants have not the legal capacity to set up such defense;” which demurrer was overruled by the court.' Thereafter plaintiff filed its motion for judgment on the pleadings, which motion for judgment was overruled.
After these motions' were passed upon, defendants were permitted by the court to make slight amendments to the answer by interlineations and by striking out certain words and phrases. The interlineations thus made are shown by italics in the above copy of the answer.
“Now on this 29th day of October, 1909, comes plaintiff by its attorneys, George H. English, Edward C. Wright and Ernest D. Martin, and defendants by their attorneys, Beardsley, Gregory & Kirshner and William G. Holt, and this cause coming on to be heard on plaintiff’s amended petition and the amended answer of the defendants and plaintiff’s reply, and the evidence produced by both parties upon the trial, the court having heard all of the evidence and being fully advised in the premises, doth find the issues for the defendants and against the plaintiff; and being requested by plaintiff to make specific findings of fact and to announce conclusions of law, doth make certain findings, and doth refuse certain findings requested by plaintiff, and doth file said findings and conclusions, with the official stenographer, and doth order them to be made a part of the bill of exceptions herein. And' the court doth further find that plaintiff is not entitled to the relief asked for in its petition. ’
“Wherefore it is ordered, adjudged and decreed by the court that the temporary injunction heretofore granted herein be and the same is hereby dissolved, and that the defendants recover of plaintiff their costs and have execution therefor.”
Plaintiff appealed from the judgment. No final bill of exceptions was filed.
Furthermore, it might be added that even though the demurrer had been confined to the remaining portion of paragraph one, and it should be further determined that the demurrer thereto should have been sustained, yet it would afford no basis for a reversal of the judgment below, because we would still be in the dark with reference to what occurred on the trial. What occurred at the trial in this case, and upon what evidence or lack of evidence the judgment was based, is, in the absence of a final bill of exceptions and motion for new trial, a sealed book. The judgment is a general judgment. Whether the defendants introduced evidence to support the remaining allegation's of paragraph one, and the same was, over plaintiff’s objection, admitted, and formed the basis of the judgment, or whether upon tlie trial the defendants offered such evidence, but, upon plaintiff’s objection, it was excluded, or still further, whether the judgment of the trial court was based upon plaintiff’s failure to make out a prima-faeie case, or whether, after it did make out a prima-facie case, the same was overcome by defendants’ testimony, we do not know and are not
So in the present case, assuming arguendo that the trial court’s action in overruling plaintiff’s demurrer to paragraph one of the answer was wrong, yet plaintiff had left to it a sufficient way to maintain its point by objecting to any evidence which might be offered by defendants in support of that portion of said paragraph.
As above stated, we have no way of knowing what did occur at the trial, except that there was a general judgment finding the issues against plaintiff and in favor of defendants. Whether the judgment resulted from the contest over the general issue raised by the general denial contained in paragraph four of the answer, or otherwise, we cannot tell. Since this is true, it would serve no useful purpose to determine the validity as a defense of the remaining portions of paragraph one, and that question should be left to be determined when it is a live issue in a proper case.
The judgment is affirmed. Roy, C., concurs
PER CURIAM. — The foregoing opinion of Williams, C., is adopted as the opinion of the court.