Kennet & Osceola R. R. v. Senter

83 Mo. App. 181 | Mo. Ct. App. | 1900

BLAND, P. J.

Under condemnation proceedings instituted by appellant against respondents, an assessment of damages was made by commissioners, and the damages assessed were paid to the clerk of the court in which the proceedings were had. Exceptions were filed to the report of the commissioners. A defective affidavit for a change of venue was filed. Appellant was dilatory in the prosecution of its exceptions to the report, and a motion was filed by respondents to dismiss and strike out the exceptions to the report and to confirm the report. The court sustained the motion, but instead of dismissing the exceptions and confirming the report of the commissioners, dismissed plaintiff’s cause of action. This was done at the January term, 1898. One year thereafter, at thé January term, 1899, the appellant filed a motion to require the clerk to- return the money it had paid in as damages assessed by the commissioners. No notice of this motion was served on respondents, and it does not appear from the record that any of the respondents appeared at the hearing of the motion. The evidence showed that appellant had taken possession of the land of respondents, described in the petition for condemnation. The court overruled the motion of appellant for an order on the clerk to pay over the money to it, and the appeal was taken.

The contention is,- that because tire court erroneously dismissed its -condemnation proceedings, it may take both the land and the money, and that it may do so without giving the respondents, whose lands it occupies, an opportunity to- be heard. Ordinarily a dismissal of a suit takes the entire case out of court. But where proceedings have been had in the suit whereby rights have become vested, and'the subject-matter of these rights has passed out of the jurisdiction of the court, an improvident order dismissing the suit can not have such a retroactive force as to divest a right in a subject-matter which has passed from the jurisdiction of the court. The state in the exercise of its right of eminent domain, by and through the railroad company, had -condemned the land for public use. The. railroad company, by paying in the damages assessed by force of -the statute, became seized of the title in the lands and took possession of them; the right to condemn and the act of condemnation had passed to a final judgment and were beyond the control of the court. The order dismissing the. suit could only reach what was then before the court and what had not been finally adjudicated, i. e., the exceptions to the assessment of damages. The judgment is affirmed.

All concur.