Connors v. City of St. Joseph

BOND, C. Plaintiff is the owner of a lot of ground and improvements thereon situated on Vine street in the city of St. Joseph. The records of the circuit court of Buchanan county, of date January 18, 1904, recite, in substance, that a certified copy of an ordinance providing for the grading of the street in front of plaintiff’s property, together with due proof of publication thereof, had been filed in that court; whereupon, said court made an order giving notice to all persons concerned of the filing and purposes of said ordinance, and ap- - pointing February 3, 1904, as the day and said court room as the place for ascertaining and assessing the damages and benefits that might arise from said proposed grading, and admonishing such persons to file their claims for damages, together with a description of their respective property and titles thereto, on or before said date or any continuance thereof under penalties of law, and the court directed proper'publication of said ordinance, which its records show was duly had. • The files of said court show that the affidavit of the printer as to the due publication of the ordinance, although attested by'a notary to have been sworn to on January 18, 1904, yet recited in the body of the affidavit that the publication- was made between and including the dates of “18th of December, 1904, to 27th of December, 1904.” On the trial of the present action, the court permitted the publisher to amend the body of the said affidavit by filing a new affidavit to the effect that the figures denoting the year in the former affidavit should have been 1908 instead of 1904. The records of the said circuit court show the appointment and reports of commissioners to assess damages and benefits, but are silent as to whether or not such commission were freeholders. The records of the said circuit court show the written instructions given to the commissioners by the court, which were found among — 618 — the file papers in said grading proceeding,' but contained no indorsement of filing. It was admitted that the city of St. Joseph paid all the owners of abutting property the amount of damages assessed in their favor by the commissioners. No claim for damages was made in the street grading proceeding by the plaintiff in the present suit, which was brought about four years thereafter (1908) to recover damages caused by the grading of the street in front of her property. To this suit the defendant city • pleaded the enactment of said grading ordinance and the due enforcement thereof by the subsequent proceedings in the circuit court of Buchanan county, as are before stated, for a complete bar to any recovery by plaintiff in this action. Plaintiff replied, admitting the grading of the street. It was admitted by both parties that if plaintiff was entitled to recover at all, her damages were $400. Thereupon, after waiver of a jury, the cause was submitted to the court for trial, and judgment rendered for plaintiff for $400, from which defendant appealed. OPINION. I. The action of a city of the second class in the matter of enforcing ordinances for the grading of its streets is regulated by statutes, which prescribe the various steps to be taken from the passage of the ordinance until its final performance through a special execution under a judgment of the circuit court. A certified copy of the grading ordinance is filed with the clerk of the circuit court. It then becomes the duty of the court to make and publish, as prescribed by statute, an order addressed to all persons concerned. Thereupon, tbe court is invested with jurisdiction to proceed in the matter according to other provisions of the statutes, and its judgment as to the award of damages or assessment of benefits is preclusive and binding on all persons interested in the subject, except — 619 — upon a review by appeal or in ease of the repeal of the ordinance. [R. S. 1900, secs. 9051-9066', inclusive.] This special proceeding relates only to the issues of damages and benefits, and provides in express terms that in other respects it shall be conducted according to the general code of civil procedure. [R. S. 1900, sec. 90'61.] The proceeding is one in rem. After due publication of notice to abutting owners (without naming them), reciting the copy of the ordinance filed in the circuit court, and requiring all persons concerned to appear on the day and at the place fixed for the ascertainment of ’ damages and benefits, and file their claims with a description of their property, the court becomes fully possessed of jurisdiction of the subject-matter of the proceeding and the persons of the parties so notified, and is empowered to proceed to enforce the grading ordinance under the limitations of the Constitution and the law. It is insisted; that the jurisdiction thus normally acquired by the circuit court, in cases like the present, did not vest in this instance, because the certified copy of the ordinance, though deposited in the circuit court by the proper officer and found among the papers constituting the files in this proceeding, and though the court records recited the fact of the filing of the certified copy of the ordinance, was not legally filed for want of a superscription showing its filing by the clerk. It has been repeatedly decided that the fact of the due filing of papers in court is not dependent upon the affixing of a 'filing mark on them by the clerk, which is simply a ministerial duty on his part — the performance or nonperformance of which does not affeet the fact of a proper filing, which may be shown by other evidence, as was done in this case. [State v. Jackson, 221 Mo. 493; Bennett v. Hall, 184 Mo. 420; State v. Hockaday, 98 Mo. 503; Baker v. Henry, 63 Mo. 517; Rowe v. Schertz, 74 Mo. App. 608.] — 620 — II. It is also urged by respondent that the affidavit of the printer showing the publication of the ordinance by the city authorities previous to the filing of a certified copy in the circuit court is defective, in that it misdates the year of publication by reciting December, 190l¡., when it should have been recited December, 1903. The trial court permitted an amendment to this affidavit by the substitution of another made by the same printer. That method of correcting the clerical error was not necessary in this case, for an inspection of the affidavit shows that the jurat of the officer sets forth that it was sworn to before him on January 18, 1904; hence, it is evident it could not have been printed in December, 1904, and that the figure contained in the body of the affidavit referring to its publication in December, 1904, was a mere slip in the stroke of the pen of the affiant. The affidavit and jurat do furnish intrinsic evidence of the error in using the figure 4 as the final one in the year mentioned in' the affidavit instead of using the figure 3 as the final one in said year. The affidavit and jurat were, therefore, self-curative and needed no amendment by the filing of a new affidavit. [Fleming v. Tatum, 232 Mo. l. c. 690.] We, therefore, hold that even if the statute had conditioned the jurisdiction of the circuit court not only on the filing of a certified copy of a grading ordinance bnt also on the attaching’ thereto of an affidavit of previous publication (which it does not), still the affidavit and jurat affixed to the certified copy filed in this case met the requirement of the law. [R. S. 1909, sec. 9055.] 'III. The important question on this appeal is, whether the failure of the record of the circuit court in a proceeding under the grading ordinance to show expressly that the commissioners appointed to ascertain damages and benefits were also “freeholders” (Const., art. 2, sec. 21), or “disinterested freeholders” — 621 — (R. S. 1909, sec. 9056), is fatal to the jurisdiction exercised. If the power of the circuit court to act at all in' the proceeding before it depended wholly upon an express recital in its records that the commissioners appointed in the course of the exercise of its jurisdiction were “freeholders” or “disinterested freeholders,” then the entire proceeding conducted by it for the grading of this street was a mere nullity, and the judgment for plaintiff for damages caused thereby would 'have to be affirmed, for the reason that judicial proceedings which are carried on without any jurisdiction or judicial power to do so are absolutely void, and hence open to attack in collateral suits like the present. If the plaintiff had pursued her remedy by appeal from the judgment of the court in the former proceeding, all errors occurring in the conduct thereof would have been open for review and correction. But that was not done, and the effort now is through the medium of an independent suit to declare the entire proceeding to enforce the grading ordinance coram non judice, because it contains no recitals as to the characteristics of the persons appointed as commissioners to report damages and benefits. It is not claimed in- the present suit that the persons so appointed as commissioners in the former did not possess the attributes of freeholders. The only claim is that the record.there is silent as to this. This reduces the entire discussion to one question. What presumption legally arises from silence of the record on that subject when it is attacked collaterally in this suit? The court in the street grading case was acting under special powers bestowed upon it by the Legislature outside of the sphere of its general- powers as a court of law and equity, except, so far as these were made applicable to any matters which might arise in the course of the special proceeding and which it did not specially provide for. It acquired jurisdic — 622 — tion and power to act in the matter by the filing with its clerk of a certified copy of the ordinance and by the making and publishing of a notice thereof, addressed to the abutting property owners. When these things were done, the court was invested with full authority to proceed in the matter and to charge plaintiff’s property with benefits or assess damages in her favor if she made any claim for such. In the further exercise of this jurisdiction, the court appointed certain commissioners to make report as to damages and benefits. If in so doing the court did appoint commissioners who possessed the qualifications required by the Constitution and the statutes, but failed to evidence that fact by a record entry, it cannot be held that such an omission deprived the court of all power to exercise any further jurisdiction. For if that were true, then the power of the court to proceed with the cause would be made to depend, not on the fact of its rightful action, but solely upon the existence of evidence of such action in the form of a record recital It may have been error on the part of the court not to keep a complete record of its acts and doings during the progress of that cause (R. S. 1909, sec. 9054), still such error did not divest it of all jurisdiction, but was only an error occurring in the exercise of a previously vested jurisdiction. Such errors cannot be reached by collateral attack, whether committed in judicial proceedings under the general or special powers conferred on the circuit court. In either event, the same favorable presumptions arise. [Leonard v. Sparks, 117 Mo. l. c. 108.] The cast last cited, by Barclay, J., is directly in point and controlling. It reviews in extenso the previous variant rulings in this State, and announces the doctrine, that, when collaterally attacked, the judgment of the circuit court in a purely statutory proceeding ‘ ‘ entirely out of the course of common law procedure” must receive in its support the benefit of the same presumptions accorded by law to all judg — 623 — ments rendered by such court in the exercise of its ordinary and general powers. To the same effect see Burke v. City of Kansas, 118 Mo. 309; Thompson v. Railroad, 110 Mo. l. c. 162; Belk v. Hamilton, 130 Mo. l. c. 300; Lovitt v. Russell, 138 Mo. l. c. 474. There is nothing in the ruling made in the City of Tarldo v. Clark, 186 Mo. 285, which militates against the principle established in Leonard v. Sparks, supra, which case is cited in Tarkio v. Clark with approval of its doctrine as to collateral attacks, but held not to apply in the latter case since the attack there was a direct one made on appeal. The same distinction exists as to the ruling in In re Bledsoe Hill, 200 Mo. 630, which was also a direct attack by appeal to this court. Our conclusion is, that there is nothing in the record made by the circuit court in the exercise of its jurisdiction to enforce the street grading ordinance which shows that the court in that proceeding had no'power or jurisdiction over the subject-matter or over the plaintiff so far as to render the judgment which was had in the case, and that said judgment is , not open to the collateral attack which constitutes the ground of the present action, and that the failure of the record to make any recital in that cause that the commissioners were freeholders was only an error occurring in the erroneous exercise of jurisdiction and did not flow from a total want of jurisdiction, and hence it was one correctible on direct attack but closed to collateral attack, and, therefore, is a bar to this suit. The result is, the judgment herein is reversed. Brown, G., concurs. PER CURIAM. The foregoing opinion of Bond, C., is adopted as the opinion of the court. All the judges concur.