State ex rel. Greely v. City of St. Louis

67 Mo. 113 | Mo. | 1877

Norton, J.

This is a proceeding by certiorari in the circuit court of St. Louis county, the purpose of which is to correct certain alleged errors of the land commissioner of the city of St. Louis, in the assessment of benefits against relators growing out of opening Eranklin Avenue, a street of said city. On the trial, judgment was rendered for defendants, which, on appeal to the St. Louis Court of Appeals, was reversed and judgment rendered for plaintiffs, from which defendants have appealed to this court.

It is claimed that the record discloses five valid objections to the legality of the proceedings of the land commissioner, one of which is as follow, viz: that it nowhere appears from the said record that either of the said relators had any legal or proper notice of the proceedings of said land commissioner in opening Franklin Avenue. The law authorizing the proceeding provides that,in opening any street, six days notice shall be given to the persons whose property is to be condemned, and that the notice shall be served by the city marshal, either by delivering the same to the person, or by leaving a copy thereof at the usual place of abode of such person, with - some member of the family over the age of fifteen years; also, that the land commissioner shall cause a notice of the commencement or pendency of proceedings for the assessment of benefits with which to meet payments of any such damages to be given to any person whose property it is proposed to assess for that purpose, and that such notice shall be served or published for the same terms of time, for like causes and with like effect, respectively, as is provided for notices in cases of condemnation. Acts 1870, p. 478, Sec. 2. "We think the obvious meaning of the law is, that a person whose property is assessed with benefits, is to bo served with notice in the same manner that a person whose property is condemned, is required to be served.

The return of the marshal, as to service of notice on the relators, does not comply with the law. It does not show that it was served, either by delivering it to them, or by leaving a copy thereof at their usual place of abode. It simply states that he executed the same by having had personal service. It was not for the marshal to determino what was personal service. The return should have stated in what the personal service consisted, so that the court could determine its sufficiency.

It is said in the argument of counsel, that this return was amended so as to make it comply with the law. From the record before us, this does not appear. It is true, among the papers we find a detached paper signed by the marshal, not marked filed, pui’porting to be an amended return, on the back of which is the following indorse-; ment:

“ Presented, and- amendment granted, Eeb. 4,1874.

Lewis, Clerk.”

This paper we cannot consider, first, because it is not filed; and, second, because if intended as an amended return, it does not appear to have been made by the authority of the court. Amendments of this character are allowable, but can only be made under the sanction of the court, or some competent authority. Sec. 21, Wag. Stat. 1037, provides “that no process, pleading or record shall be amended or impaired by the clerk or other officer, without the order of such court, or some court of competent authority.”

This we presume was the view taken of this alleged amended return by the Court of Appeals, as nothing is said in relation to it in the opinion delivered, and it is only adverted to here, because it has been brought to our attention in appellants’ brief and passed sub silentio in that of respondent.

The proceeding against relators being in invitum, statutory and summary, and in derogation of private right, the utmost strictness is required in order to give it validity, and, unless upon the face of the proceedings had, it affirmatively appear that every essential prerequisite of the statute conferring authority, has been fully complied with, every step from inception will bo corain nonjudice. (Ells v. Pacific R. R., 51 Mo. 200.)

Notice to relators was a jurisdictional fact, and an essential prerequisite to be complied with, before their property could be assessed with benefits. The record does not show that this notice was given, and hence it follows that, for that reason, if for no other, the judgment of the Court of Appeals was for the right party, and should be affirmed, which, with the concurrence of the other Judges, is done.

Aeeirmed.