125 Mo. 574 | Mo. | 1894
This is an action of ejectment in the statutory form, for the possession of lot 9, in
Plaintiff obtained judgment in the circuit court for possession of the lot, and damages in the sum of $40, and the rents were fixed at $5 per month. In due time defendants filed motions for new trial and in arrest of judgment.
The motion for new trial was based on the following grounds: “First. The finding of the court upon facts in this case is contrary to the evidence. Second. The finding of the court is contrary to law. Third. The finding of the court under the evidence should have been for these defendants. Fourth. The finding of the court under the law and upon the evidence should have been for these defendants.” And the motion in arrest simply asserted that, upon the whole record, judgment should have been given for defendants, and the court erred in rendering judgment for plaintiff. No exceptions were saved to the ruling of the court on the admission of the evidence. No instructions were asked or given.
The only ground for reversal, as the record is now made up, is that the finding and judgment of the circuit court is against the evidence. It is the settled practice of this court not to disturb the findings of the circuit courts in actions at law on the ground that they are contrary to evidence, unless there is a complete failure of testimony tending to support the verdict or finding. Wilson v. Albert, 89 Mo. loc. cit. 544; McKay v. Underwood, 47 Mo. 186; Bank v. Armstrong, 92 Mo. 280; Mead v. Spalding, 94 Mo. 43. We may only look then to see if there was any testimony upon
It was admitted she was the common source of title and entitled to recover unless certain condemnation proceedings instituted by the city in grading a part of Colorado avenue in said city had divested her title. Defendants relied on a sheriff’s deed based on a judgment for benefits under these proceedings. We have had some difficulty in determining just how far we ought to consider the record of the condemnation proceedings. In the bill of exceptions we find this stipulation: “It is understood that all the records and papers in said case number 1674, as either party might desire to use, are in evidence.” - Now, with a perfect knowledge of the record, counsel on both sides have argued the sufficiency of the notice to Mrs. Williams.' Her counsel, in his additional abstract and brief, makes the statement that the service was an order of publication. On the other hand, counsel for defendant argues the sufficiency of the service as giving the court jurisdiction and that when it was once obtained .it was not open to collateral attack. We find, however, in the bill this fact, that the circuit court was not in session when this petition for the grading proceedings was filed with the clerk, nor was it presented to any judge of that court in vacation, and this is a sufficient basis for the discussion maintained on both sides as to the sufficiency or insufficiency of the service in the inception of these proceedings.
These proceedings were had under an act of the legislature approved March 31, 1887, entitled “Cities, Towns and Villages. Damages to Private Property for Public Use.” Laws of Missouri, 1887, p. 37. The act provides that “the petition may he presented to the circuit court when in session, or to any judge thereof in vacation.” It further provides that “upon filing the petition a summons shall be issued, giving the defend
I. The wisdom of the common law rule that no man shall have his rights judicially ascertained without notice is nowhere more apparent than in proceedings to condemn private property for public use. The legislation of this state, looking to the ' exercise of eminent domain, has uniformly required personal service if it could be had. It is generally conceded that the legislature may prescribe the character of, the notice and a substantial compliance with the statute must be observed. A reading of this statute will, we think, demonstrate that the proceedings under it must be begun by presenting the petition to the court, if in session, and if the court is not in session, to a judge thereof in vacation. There is no other alternative in the statute. The petition can not be presented to any other officer. The proceeding is, and is intended to be, summary to a large extent. The forms and methods of procedure in other actions afford but little aid.
The defendant construes the statute as permitting the city to commence the proceeding as it would any ordinary civil action by filing the petition with the clerk and the issue of an ordinary summons, save that it only requires ten days’ notice, instead of the fifteen in other civil cases. But it seems apparent to us that the legislature, for its own reasons, intended that these proceedings affecting so vitally the rights of private property should commence with an order from the judge of the circuit court. It will be noted that it is the judge or the court who is to appoint the commissioners, and in this connection that the summons issued shall give the defendant landowners at least ten days’ notice. The length of the notice, then, is discretionary. In whom is it vested? We think most clearly, not in the clerk, but in the court or judge to whom the petition is presented. He must determine whether the petition is sufficient. He knows best •when and ivhere he can hear the proof of service and appoint the commissioners, and is best able to judge of the exigency. Unless the judge or court was to pass on the petition and fix the time and place for the hearing and specify the length of notice, the requirement that it should be presented to the court or judge would be entirely meaningless. Who but the- judge himself could determine in vacation where and when he would hear the proof of service? Who in term time could so appropriately fix the time with reference to the business of the court, as the judge? Had it been the intention to institute these proceedings before the clerk, how simple it would have been to have authorized the filing of the petition with the clerk and authorized him to set the time.
But not only is this statute capable of no other
So that we think that the statute meant that these important proceedings shall commence with the judge or the court, and he should fix the time for hearing the proof of service and appointment of commissioners and order the petition filed and the summons or publication to issue, and, therefore, this proceeding begun before the clerk was without sanction of law, and his summons or order of publication would alike be utterly futile and would confer no jurisdiction on the judge or court to proceed to condemn private property.
The learned- counsel for defendant argues that the first time the services or discretion of the judge or court is to be invoked is after the summons or order of publication has been served on the day fixed by the clerk for hearing the proof and appointing commissioners. We can not assent to this construction of the statute so contradictory of its structure and the ordinary construction given similar statutes and provisions in the ordinary practice.
But this doctrine, when rightly understood, does not in the least shake the authority of those decisions' in this state which hold'that, although the record of a court of. general jurisdiction recites that defendants have been duly served with process, it is competent to overthrow such recital by showing by other portions of the record of equal dignity, and importing equal verity, that such recital of service is not true. Cloud v. Pierce City, 86 Mo. 357; Laney v. Garbee, 105 Mo. 355; Milner v. Shipley, 94 Mo. 106; Bell v. Brinkmann, 123 Mo. 270; 1 Freeman on Judgments [4 Ed.], sec. 125; Higgins v. Beckwith, 102 Mo. 456.
It requires no authority to establish the proposition that courts, even of general jurisdiction, can only acquire jurisdiction over parties, defendants, by an observance of the modes of procedure prescribed by law, unless the parties waive service, and enter their voluntary appearance. In the additional abstract of evidence filed by respondent, and not denied by appellant, “it appears that plaintiff was notified by publication of the time when the petition would be heard, and had received no personal notice of any sort at any time.” So that there is no question as to the effect of any appearance by herself or her attorneys. It appearing, then, that whatever process issued in this case was the act of the clerk in vacation prior to and in fact without the petition having ever been presented to the court, could it confer jurisdiction over the plain
In Laney v. Garbee, 105 Mo. 355, we held that where the sheriff’s return showed service only “by delivering a certified copy of this writ and the petition to a member of John Laney’s family over the age of fifteen years,” the judgment was void, the statute requiring a copy of the petition and writ to be left “at the usual place of abode” of the defendant “with some person of his family over the age of fifteen years.” Citing Bank v. Suman, 79 Mo. 530; Brown v. Langlois, 70 Mo. 226; Blodgett v. Schaffer, 94 Mo. 669.
If the failure of the executive officer to comply substantially with the mode prescribed for service of the writ, regular on its face, renders the service void where it is constructive, how can a service be held sufficient when the process or writ does not even emanate from the only authority clothed with power to set it in motion? In other words not only must process be served in the manner prescribed by law. but the process itself must be the mandate of a court, judge or officer authorized by law to issue or require it to be issued. The stream can not rise higher than its source.
The summons or order of publication in this case, and it matters not which it was, was issued by the clerk without authority and could not become the basis of a valid judgment against the plaintiff in the absence of her voluntary appearance which it is conceded she did not enter. We readily concede that if the clerk has authority to issue a writ and omits some formal requirement it is not void; or if, as in Leonard v. Sparks, supra, the writ had been issued by one having authority to issue it and it had been regular in every respect and yet the defendant had not received the full notice required by law, it would not be void, in a collateral
II. But it is also contended by plaintiff that the proceedings are void because the commissioners gave her no notice of their meeting on her lot to assess the benefits against her. The commissioners return that they gave personal notice to the several owners as well as five days’ notice by advertisement, but they filed with their report the notice and service by the officer whose return is in these words: “I hereby certify that I have served the notice hereto attached upon the persons therein named within the limits of the city of Kansas, Missouri, as follows: On April 16, 1889, by delivering a copy of the said notice personally to each of the following named persons, Frank N. Chick * * * and I do further certify that I have made diligent search for the following named parties and their agents, to wit: Mary E. Williams, wife of J. R. Williams, within the limits of the city of Kansas, Missouri, either by delivering a copy of said notice personally to, or by leaving a copy of said notice at the usual place of abode of each of said parties respectively with a member of their respective families over the age of fifteen years.
“Witness my hand this sixteenth day of April, 1889.
“[Signed] Joseph G-lyn,
“Police officer.” '
“Subscribed and sworn to before Samuel S. Winn, Notary Public.”
Plaintiff did-not appear and knew nothing of the meeting. The commissioners assessed her benefits at $2. By what system of nice discrimination they reached this verdict, the report does not disclose, but for this benefit of $2 property of the value of $1,500 was sold, without notice to her. How the officer managed to avoid finding plaintiff’s agent also excites one’s curiosity. • Her tenant, Margery Monroe, was in actual possession up to January 1, 1890, and either plaintiff or her son was regularly collecting the rent in person. The slightest inquiry of this tenant would have disclosed plaintiff’s whereabouts.
But it is said, first, that the return is no part of the record, and, if it was, it can not be presumed it was the only evidence. We think the return was a part of the report and the whole record being before the circuit court there is no room for presumptions in favor of other evidence of service.
The serious question with us is whether the failure to give this notice is jurisdictional. When it is considered that this is the only opportunity the owner has of proving his damages or disproving the supposed benefits, it is apparent that it is of vital importance to him or her to be present at the meeting of the commissioners. It was held in Kanne v. Railroad, 33 Minn. 419, under a statute requiring the commissioners to give notice to the owner of the meeting to appraise the damages, that the want of notice of the meeting of the commissioners went not to the jurisdiction of the court over the person of the .landowner, but to the authority of the commissioners to act. The notice had respect to the compensation of the landowner, and the object
That the statute of 1887 requires two notices to the owner of land to be affected by grading proceedings is very plain. The meeting of the commissioners in this case to assess these benefits was the only one that really affected plaintiff. Have the courts the power to hold this plain statutory provision is of secondary importance? In Leavitt v. Eastman, 77 Maine, 117, the supreme court of Maine well expresses the doctrine. “It is common learning that where private property is. sought to be taken against the will of the owner, under statute authority, all the statute requirements must be fully and strictly complied with. In the procedure no step, however unimportant, seemingly, must be omitted, nor will the substitution of other steps, in the place of those named in the statute, be sufficient. To deprive the citizen of his property requires the whole statute,' and nothing in the place of the statute. If there be any degrees in the importance of the requirements, that of notice of the intended proceedings, would be the chief.” Harris v. Marblehead, 10 Gray, 40; Railroad v. Fitchburg, 121 Mass. 132; People ex rel. v. Kniskern, 54 N. Y. 52; Skinner v. Lake View Ave. Co., 57 Ill. 151.
Our conclusion is that in the absence of the notice required by the statute the award of the commissioners was void as to plaintiff. They had no authority to act. In the language of the supreme court of the United States in Windsor v. McVeigh, 93 U. S. 274, “the doctrine invoked by counsel that, where a court has once acquired jurisdiction, it has a right to decide every question which arises in the cause, and its judgment; however erroneous, can not be collaterally assailed, is undoubtedly correct as a general proposition, but, like
Having reached the conclusion that the proceedings of condemnation were as to Mrs. Williams void in limine because not presented to the judge or court, and that the action of the commissioners in assessing her with benefits without notice was void as to her for want of power in them to act without notice to her, we reach the result that there was ample evidence upon which to base the judgment of the circuit court, and its judgment is, therefore, affirmed.