Mulligan v. Martin

BROADDUS, P. J. The petition in this case contains three counts. The first alleges an invasion of plaintiff’s farm by defendant, the tramping down of his fences, cutting of timber and ploughing of his land, for which he asks damages. The second alleges that plaintiff has been deprived of the use of his land, for which he claims damages. The third seeks an injunction to prevent a repetition of such conduct on the part of defendants. Defendants seek to justify their act of invading plaintiff’s premises on the ground that they were officers of Kidder township, or road hands working under such officers, and were opening the land in ques [633] tion pursuant to certain condemnation proceedings had before the board of trustees of said township under the provisions of the Township Organization Law. Various objections are made as to the legality of the proceedings. First, it is claimed that they_ are void because the petition did not give the names of the owners of the land over which the proposed road was to pass, viz.: that it names Dennis Mulligan as the owner of the land in question; and the report of the road and bridge commissioner reported also that Dennis Mulligan was the owner. The evidence showed that Dennis Mulligan died in February, 1901, moré than three years before the proceedings were instituted, and that plaintiff through his agents and tenants from the death of said Dennis had been in possession of the land, and that he was the owner. It was further shown that plaintiff was a resident of the State of Kentucky. The report of said commissioner as to plaintiff’s land was that he “was unable to ascertain the amount of damages claimed” by Dennis Mulligan, and that he appraised and assessed his damages at fifty dollars. The record of the board also recites that the amounts due Dennis Mulligan and others as damages have been tendered to them and refused. The court sustained the validity of the proceedings to open the road and found against plaintiff on all the issues and he appealed. Section 10343, Revised Statutes 1899, under which these proceedings were had, provides that the petition for the proposed road shall give the name of “the owners if known.” It has been held in construing a similar statute that the record should show that every essential provision of the statute had been complied with. [Whitely v. Platte Co., 73 Mo. 30.] These proceedings are not in compliance with the statute. The petition should have been given the name of each of the owners of the land sought to be condemned for the road if known, otherwise should have stated that he was un [634] known. If the petitioners undertook to state the name of an owner of the land, they should have stated it correctly, otherwise it is no statement of the known name of such owner. It would therefore he the Omission of an important provision of the statute.. If land be condemned in the name of Jones, whereas Smith is the owner, the latter would be deprived of his land without any compensation whatever, as the damages assessed would be payable to the former. If, however, the owner’s name be unknown and the proceedings for condemnation of his land be prosecuted against him as unknown, upon identification as the owner he would be entitled to the damages assessed for the taking. In principle our conclusion is supported in Spurlock v. Dornan, 182 Mo. 242. In that case the proceedings were in the county court for the opening of a • public road. Section 9416, Revised Statutes 1899, made it the duty in such cases of the county road commissioner to take the names of all resident owners of land through which the proposed road was to be located and who had not, or would not, give the right of way, and the amount of damages claimed by each one separately, together with the numbers of the land, etc. The county court proceeded upon the theory that the land belonged to Haywood Spurlock and the damages were assessed and paid to him. The land belonged to the wife who brought suit to restrain the opening of the road over her land. The court held that “Unless the commissioner appointed by the county court to take the names of all the resident owners of the land through which the proposed road is to run, and who have not or will not give the right of way, makes a report showing the names of all such persons, and the amount of damages claimed by each, the court has no jurisdiction to proceed to open the road.” Defendants contend that the validity of the proceedings of the township board cannot be attacked in a collateral inquiry and in support of this position cite [635] the following eases. [Lovitt v. Russell, 138 Mo. 474; Chrisman v. Divinia, 141 Mo. 122; Railroad v. Warden, 73 Mo. App. 117.] These cases refer to collateral attacks upon judgments of courts where it appears that the courts rendering them had jurisdiction. But it is well settled that the jurisdiction of a court over a given subject is always a matter of inquiry. The statute so provides. And such has been the uniform ruling in this State. [Myers v. McRay, 114 Mo. 377; Holt County v. Cannon, 114 Mo. 514; State ex rel. v. Brandhorst, 156 Mo. 457.] And it has been held that “Where the court had jurisdiction of the parties and the subject-matter, its judgment is not open to collateral attack.” And “A judgment cannot be collaterally attacked for want of jurisdiction, by matter in pais. Such an attack must be made on the record in the case.” [Reed Bros. v. Nicholson, 158 Mo. 624; Covington v. Chamblin, 156 Mo. 574.] These cases apply to courts of record, the recitations of the records of which import absolute verity. They have no application, however, to a proceeding of this kind, a township board not being-a body constituting a court. And it is held that for the purpose of. ascertaining whether a county court has acted within its jurisdiction in opening a public road, inquiry may be 'made by matters in pais in a collateral attack upon its proceedings. [Spurlock v. Dornan, supra.] Upon principle, the proceedings of a township board would be governed by the same. Other points are raised by the appeal, but, as the proceedings were totally void, the cause is reversed and remanded. All concur.