Big Tarkio Drainage District v. Voltmer

ROT, CL — This is a proceeding to assess benefits and damages to appellant’s land, growing out of the establishment of the Big Tarkio Drainage District. The appellant is the owner of land in the district. On November 18, 1909, a proceeding was begun in the circuit court of Holt county to establish said district. A 'change of venue as taken to the circuit court of Andrew county, where, at the regular February term, 1910, a decree was entered incorporating said drainage district. A certified copy of that decree with a plat of said district was filed in the office of the county clerk of Holt county on March 23, 1910. No further proceeding ap — 159 — peared of record in the circuit court of Andrew county in said cause. On August 1, 1910, the district corporation filed with the clerk of the circuit court of Holt county an application for the appointment of commissioners for viewing the land in said district and assessing benefits and damages accruing to the lands therein by reason of the proposed improvements. The application states that the drainage district was incorporated by a decree of the circuit court' of Andrew county. On August 4, 1910, that application was presented to the Hon. Wm. 0. Ellison,- judge of the Fourth Judicial District and of the circuit court of Holt county, and said commissioners were then and there appointed by said judge, and on September 30, 1910, they made their report of tbeir proceedings as such commissioners to said court, showing the total benefits to said appellant’s land, amounting to $5715, and the total damages $2740, leaving the net amount of benefits $2975. On October 31,1910, and in due time, the appellant filed his objections and exceptions to said report, the substance of which exceptions was as follows: “First: None of the land included in the pretended drainage district and belonging to this exceptor and lying and being situate in Holt county, Missouri, was ever adjudged to be included in a corporation by the circuit court of Holt county, Missouri; nor by any other circuit court having any jurisdiction to declare such incorporation of the lands situate within said county; that no notice of any meeting of the landowners within said pretended drainage district was ever called within thirty days, or any other time, by the clerk of any circuit court ‘declaring said pretended drainage district a corporation,’ and no authority was ever granted by :law to the clerk of the circuit court of Holt county, Missouri, to issue any notice of the time and place of meeting of landowners in said pretended drainage district, to meet and elect a board of' supervisors; that the pretended board of supervisors of. said pre — 160 — tended drainage district never met, within the time and at the place required by law, and organized as required by law; that said pretended board of supervisors did not, within the time and manner prescribed by law, proceed to appoint a chief engineer for said pretended drainage district, as required by law. “Exception 2. Many of the persons owning land in said drainage district were nonresidents of Missouri and no personal service was ever had upon them and no legal notice of such proceeding was ever given. “Exception 3. That no plan for drainage as required by law had ever been adopted by the board of supervisors for the drainage district. ‘ ‘ Exception 7. That the judge of this court has no power to appoint commissioners to assess the damages or benefits to the lands of the exceptors. “Exception 8. That the said commissioners did not in the assessment of the damages and benefits proceed in the manner required by law in any respect whatever. “Exception 9. That said assessments of benefits are wholly erroneous, unjust and without any just and lawful grounds whatever and said benefits are excessive. “Exception 11. That the assessment of benefits •against the land of this exceptor is not bona fide, but is wholly fraudulent and without any just- basis in fact •or in law. “Exception 12. The alleged plan of drainage is wholly impracticable and based on erroneous surveys. “Exception 13. This exceptor now says that the •statute under which said proceeding is conducted is unconstitutional and void for the following reasons, to wit: It is provided in section 21 of article 2 of the •Constitution of the State of Missouri, that private property shall not be taken or damaged for public use without just compensation; article 3, chapter 102, of statutes of Missouri for the year 1899, as amended from — 161 — time to time, now known as chapter 1.1 of the Revised Statutes for the year 1909, makes no provision whatever for the ascertaining of the damages to the lands of persons within the drainage district, but confines the authority of the commissioners to ascertaining the fair cash value of the lands necessary to be taken and used for rights of way and improvements. ’ ’ On November 11, 1910, the appellant made an application for a continuance on account of an absent witness. On November 12, 1910, the court heard said objections and deducted from said benefits the sum of $1500. On the same day appellant filed his motion for new trial and his motion in arrest, which were both overruled. Appellant’s abstract then has this statement: “Judgment was rendered upon the finding confirming the commissioners’ report as modified by the court.” Thereupon, the appellant filed his affidavit for appeal to the Supreme Court, which was allowed. appesfu I.****6futwír*ct' judgment. I. Respondent has filed a motion to dismiss the appeal on two grounds: first, that the appeal was from the order overruling the exception to ^ie rePort °f the commissioners and not from the judgment confirming that report ; second, that there is no law allowing an appeal in this case. Appellant’s abstract shows that the appeal was taken after the entry of judgment confirming the report. The statement in appellant’s brief concedes that fact. We conclude that the appeal was from the final judgment. We. must rule the second point against respondent, for the reason that section 2038, Revised Statutes 1909, allows an appeal in any civil ease in which an appeal is not prohibited by the Constitution. That pro — 162 — vision applies to a drainage ease. [King’s Lake Drainage & Levee District v. Jamison, 176 Mo. 557.] chang'e o°venue . II. The circuit court of Holt county had no jurisdiction to proceed with the appointment of commissioners and assessment of benefits and dam-a8es growing out of the establishment of the drainage district. The decree establishing such district had been rendered by the circuit court of Andrew county on change of venue from Holt county. The jurisdiction as to all subsequent proceedings in the matter of said drainage district was vested in the circuit, court of Andrew county. [State ex rel. v. Wilson, 216 Mo. 215; Tarkio Drainage District v. Richardson, 237 Mo. 49; Drainage District v. Tomlinson, 245 Mo. 1.] Respondent insists that the question of jurisdiction is not before the court because the appellant did not on the trial of his exceptions to the report, of the commissioners offer in evidence the record of the proceedings leading up to the incorporation of the district. All controversies as to the facts in that regard are settled by the statement in the respondent’s application for the appointment of commissioners, in which it is. stated that said drainage district was incorporated by the decree of the circuit court of Andrew county. It is insisted that appellant, by applying for change of venue, and by setting up in his. exceptions as aforesaid objections to the jurisdiction, in connection with mere matters of procedure not going to the jurisdiction, waived all objections to the jurisdiction. The lack of jurisdiction over the person may be waived. The lack of jurisdiction over the subject-matter cannot be waived. It cannot be conferred even by consent. [State v. Bulling, 100 Mo. 87; Brown v. Woody, 64 Mo. 547; State ex rel. v. Nixon, 232 Mo. 496.] We are aware that in Tarkio Drainage District v. Richardson, supra, it was. held that Judge Ellison’s dis — 163 — qualification had been waived. "Where a change of venue is taken in a cause on account, of objection to the judge of the court, the jurisdiction of the court is not assailed. It merely disqualifies the judge. Such disqualification may be waived by any party entitled to raise such objection. But where the venue has been changed to' some other court on account of such disqualification, the lack of jurisdiction in the court from which the venue was changed over the subject-matter cannot be waived. The judgment is reversed and the cause remanded, with directions to dismiss the proceeding to assess benefits and damages. Williams G., concurs. PER- CURIAM. — The foregoing opinion of Roy, C., is adopted as the opinion of the court. All concur.