Leavenworth Terminal Railway & Bridge Co. v. Atchison

Macfarlane, J. This proceeding was commenced in the circuit court of Platte county, in vacation, the object of which was to condemn portions of defendant’s land for a railroad and the approaches to a bridge, over the Missouri river, which was then in course of construction by plaintiff. The petition was filed on the twenty-ninth day of November, 1892, and publication of notice to defendant, who was a nonresident of this state, was ordered. Notice was duly published, and on the twenty-fourth — 223 — day of December, 1892, plaintiff applied to the judge of said court in vacation for the appointment of commissioners to assess defendant’s damages. The application was continued by the judge to the April term, 1893, of said court, by an order duly entered of record. At the April term, 1893, commissioners were appointed by the court, who made report on the seventeenth of said month, assessing the damage of defendant at $225. On the same day, viz., April 17, 1893, the clerk of said court posted in his office a notice which, after giving the style of the ease, was as follows: “To said defendant, David Atchison: “You are hereby notified that the commissioners appointed by the court to assess the damages which you may sustain by reason of the appropriation of your property by said plaintiff for the purpose mentioned in its petition, did on the seventeenth day of April, 1893, file and report all their proceedings as such commissioners.” No further order in said cause was made at that term of court. At the August term of said court, and on the twenty-sixth of August, 1893, defendant filed his motion praying the court to set aside the report of the commissioners and award him a trial by jury of the damage he would sustain on account of the appropriation of his land. The grounds of this motion as appeared from the affidavit in support of it were that he had no knowledge of the proceeding and that his damage would be largely in excess of that awarded him by the commissioners. Upon a hearing at the August term the motion fora jury trial was sustained and the cause was continued to the December term. — 224 — At the December term of court plaintiff filed a motion to set aside the order of the August term, and to approve the' report of commissioners, which was sustained, the order awarding a jury trial was set aside, and the report of commissioners was approved and confirmed. Defendant filed a motion for a rehearing, assigning several grounds therefor, which, being overruled, he appealed. I. Defendant raises, for the first time, in this court, a question of jurisdiction. It appears from copies of plats, filed in this court, that the land affected by the condemnation was originally an island in the Missouri river, lying between the town of Leavenworth, Kansas, on the west bank of the river, and the town of Weston, on the east bank of the river, in the state of Missouri, and known as Leavenworth Island. Defendant insists that the land attempted to be appropriated by this proceeding lies in the state of Kansas, and the circuit court of Platte county in the state of Missouri therefore had no jurisdiction to condemn it. The question was not raised or determined by the circuit court. There is nothing upon the record which even suggests the jurisdictional question. The land is described throughout the proceedings as being situate in the state of Missouri. None of the motions filed by defendant in the" circuit court called in question the jurisdiction of that court on account of the location of the land. It is true that a question of the jurisdiction of a court, of the general subject-matter of a suit, can be raised at any stage of the proceeding, even for the first time in an appellate court. It can not be waived, and its consideration does not depend upon whether or not it was directly passed upon by the trial court, or whether assigned as error. Indeed, if the trial court — 225 — had no general jurisdiction of the subject-matter, the appellate court could acquire none and it certainly has the right, at any time, to determine its own jurisdiction. But a court may have the general right to decide a particular class of cases, and, at the same time, no right to decide a particular case of that class. The circuit court of Platte county has general jurisdiction in condemnation proceedings, but it has no power to condemn land situated in the state of Kansas. If the record showed on its face that the land was in the state of Kansas this court would set aside the judgment of the circuit court, whether the question was raised in that court or not. But, on the contrary, this record shows that .the land condemned is located in Platte county, Missouri. The jurisdiction of the court therefore affirmatively appears. Defendant, for the first time, in this court, thus presents an issuable question of fact, involving a determination of the division line between two states, and asks this court to hear evidence, and pass upon it, as an original question, and not as an error of the trial court. Counsel admit that they are able to find no precedent in this state for such practice. They attempt to justify the practice upon the principle, before stated, that a question of jurisdiction of the subject-matter of a suit can be raised at any stage of the proceeding. They also cite some old authorities, in which it is held that an error in fact may be assigned, in an appellate court, when “the party seems to have no other remedy.” Hartshorn v. Wilson, 2 Ohio, 27; Smith v. Pratt, 13 Ohio, 548. They also cite Waddingham v. Waddingham, 27 Mo. App. 596, as sustaining their position. An examina — 226 — tion of that case will show that the question of fact considered by the court of appeals was one which arose, by the act of the appellant, after the appeal had been taken, and which estopped her to deny the correctness of the judgment. The supreme court, except in issues raised by certain original remedial writs, has only appellate jurisdiction for the correction of errors committed by courts having original jurisdiction. Generally, it may be said, that an error which can only be shown to exist by proof of facts outside the record, can not be assigned in an appellate court. There is no necessity to make an exception of this case, if one can be made in any case, for, if the land is in fact situate in the state of Kansas, the circuit court of Platte county, Missouri, had no jurisdiction to order its condemnation, and its judgment is absolutely void and affords no protection to plaintiff, in taking possession of, or trespassing upon, it. The general rule that this court can only consider questions of error which appear upon the record must govern this case. II. Under the constitution defendant had the right to have his damages assessed by a jury. But such right may be waived, and if no timely demand for a jury be made, a waiver will be presumed. The statute fixes no time within which a jury may be demanded, but it does require that exceptions to the commissioners’ report shall be filed, “in the clerk’s office, within ten days after service of notice” that such report has been filed. It is not expressly provided by the statute, but the necessary implication is that, unless exceptions are filed, the condemnation becomes complete and the proceedings end. A demand for a jury, as has been held, would be a sufficieñt form of exception. Chicago, etc., R'y Co. v. McGrew, 113 Mo. 390. — 227 — But under a fair construction of the statute the right to except would end unless asserted, either by written exceptions or a demand for a jury, within ten days after notice. The statute clearly does not contemplate that the proceedings shall be kept open, indefinitely, in order to afford parties an opportunity to demand a jury. Rotham v. Railroad, 113 Mo. 143. The notice was posted by the clerk on the seventeenth of April, and exceptions were not filed until August 26 thereafter. The demand for a jury came too late and an assessment of damages by a jury must be taken as having been waived. III. The petition, order of publication, order appointing commissioners and report of commissioners are all in substantial compliance with the requirements of the statute. If error, therefore, was committed it must be found in the proceedings subsequent to filing the report of commissioners, or in violation of some rule of practice. The'statute requires that, “upon the filing of such report of said commissioners, the clerk of the court wherein the same is filed shall duly notify the party whose property is affected of the filing thereof.” R. S. 1889, sec. 2738. On the day the report was filed, namely, April 17, 1893, the clerk of the court posted in his office a notice addressed to appellant, which, after giving the style of the case, was as follows: “You are hereby notified that the commissioners appointed by the court to assess damages which you may sustain, by reason of the appropriation of your property by said plaintiff, for the purpose mentioned in its petition, did on the seventeenth day of April, 1893, file and report all their proceedings as such commissioners.” This notice was signed by the clerk officially. — 228 — In the first place it is insisted that the statute requires a personal notice to be served on the landowner. This court ruled otherwise in the case of Chicago, etc., R’y. Co. v. Swan, 120 Mo. 30, where the precise question was raised. In that case it was held that the manner of giving the notice in case neither the owner nor his attorney reside in this state, should be governed by the provision of the general practice act, which makes a posting of the notice in the office of the clerk sufficient. Section 2034. It is next insisted that the notice itself is insufficient in substance. The statute only requires that notice of the filing of the report be given. The facts reported are not required to be incorporated in the notice. They appear from the report itself which is required to be kept on file. The proceeding for condemnation is summary and may be taken in vacation. The order of publication, or summons, as the case maybe, brings before the'court or judge the person whose land is to be affected. He is given the right to except to the report of the commissioners. The notice is intended merely to inform him that the report has been filed, so that he can make his objections thereto within the time required by the statute. Eor the purpose intended, the notice is sufficient in substance. IV. The court at its August term, upon first hearing defendant’s motion, made an order setting aside the report of the commissioners and for an assessment of damages by a jury. At the next term this order was set aside, the report was reinstated, and defendant’s motion was then overruled and the report approved and confirmed. Defendant insists that the order, first made, was — 229 — in the nature of a final judgment, and could only be set aside at the term at which it was made. We do not agree that the action of the court in setting aside the report of the commissioners was a judgment. It was no final determination of the rights of the parties. It was a mere order, or direction of the court, which remained under its control, subject to be recalled or set aside, at any time before the proceedings were finally disposed of. Revised Statutes, 1889, sec. 2208. After the court had set aside its order and overruled defendant’s motion to set aside the report of commissioners, defendant is left in the same situation as he would have occupied had his motion been overruled in the first place. The motion came too late and was properly overruled. The statute contemplates a summary proceeding, either in vacation or in term, or partly in both. Filing the report of commissioners and payment of the damages assessed by them complete the appropriation, but the parties are given ten days after notice in which to except to the award. St. Louis, etc., R’y Co. v. Clarke, 121 Mo. 195, and cases cited. This will be the case though the report may be filed in vacation. If it were intended that the parties should be entitled to ten court days in which to file exceptions a notice would not have been required. Parties to a pending suit must take notice of what is done in open court unless the statute provides otherwise. Y. The record shows that after publication of notice, and before the appointment of commissioners, by leave of court, plaintiff amended its petition “by interlining an alteration in the description of the land in said cause sought to be condemned.” The judgment was by default. — 230 — A defendant is brought into court to answer the allegations of the petition. In condemnation proceedings it is essential that the land to be affected thereby should be described so that the owner may be advised of the demands made upon him. He may be indifferent as to the appropriation of one tract, and may seriously object to the appropriation of' another. If he make default he can only be bound by a judgment authorized by the petition he was summoned to answer. A petition can not, therefore, be amended in a matter of substance, after publication of notice, so as to make a valid judgment thereon against a defendant who does not appear. Janney v. Spedden, 38 Mo. 395; Milner v. Shipley, 94 Mo. 109; Vaughan v. Daniels, 98 Mo. 234. We are unable to determine from the record what particular amendment was made to the petition, or in what particular the description in the land was altered. 'The record does not show that the alteration in the description of the land made by the interlineation was such as to add to or take from the land as originally described in the petition. On the contrary the inference is that the land was the same and that the alteration was intended merely to make a more perfect description. But aside from that, where the contrary is not made to appear, we must presume that the court acted correctly and allowed no amendment which affected the rights of defendant. It may be also said that this question was not raised, or insisted upoq in the circuit court, as one of the grounds upon which it was sought to set aside the report of the commissioners. Finding no error upon the record, the judgment is affirmed. All concur.