Bingham v. Kollman

OPINION. I. , BOND, J. (after stating the facts as above). — It is conceded by both parties and the facts show, as stated in the brief by counsel for appellant, “that the crux of the case for this court is: Was Tracy avenue between Sixth street and Independence avenue lawfully vacated by the county court in June, 1878?” Consequent to the solution of that question another inquiry might arise, whether the defendants Ford, who deraigned title from certain persons who joined in the petition to vacate the strip in controversy, are thereby estopped from questioning the validity of the vacation? Defendants make several objections to the judgment of the county court upon the assumption that it is open to collateral attack since that court is one of limited and inferior jurisdiction, and according to appellants’ notion, the facts necessary to sustain its jurisdiction must affirmatively appear in its record. That is an' incorrect conception of the law as it now exists, relating to the force of the judgments in county and probate courts. The jurisdiction to vacate streets was conferred upon the county courts by the act of the 'Leg — 587 — islature approved January 30, 1866. [Laws 1865-6, p. 200.] This act provided that persons interested in any town or city property may petition the county court describing the property to be vacated and giving names of the persons to be affected; the petition to be filed thirty days before the next sitting of the court. That notice shall be given for the same space of time by publication or posting in three of the most public places in said town or city. That if no opposition is-made vacation may be ordered, but if opposition arises the application shall be continued to the next term of court, in which event, it points out the procedure. The act further provides that no vacation shall be decreed unless the owners of two-thirds of the adjoining property consent in writing, acknowledged before justice of the peace. In the case at bar the petition to vacate was filed on behalf of, and signed by, every owner of the land on both sides of the strip proposed to be vacated. Attached to the petition was a plat which set out the names (being duplicates of those signed to the petition) of every owner of abutting property on both sides and gave the number of feet of each tract and the name of its respective owner. This plat was referred to as part of the petition, and was filed with it in the county court as the basis of their request for thirty days before the next term of the county court. There was no opposition to the request. The taking of the foregoing steps was sufficient to vest the county court with the jurisdiction of the parties, the cause of action and the res. It was not necessary that the names of the signers of the petition comprising all of the owners of the abutting property should have been put in the body of the petition. It was sufficient that they were attached to it as plaintiffs and that their names and the number of feet of land owned by each of them was set out and described in the plat which accompanied the petition and was — 588 — referred to by it. Appellants? contention to the contrary is overruled. Neither is it necessary that Kansas City, then City of Kansas, should be made a party to the proceeding. The only necessary parties to the proceeding- were the owners of the abutting property, for they alone would be entitled to compensation for the occlusion of the street. [Henderson v. Lexington, 22 L. R. A. (N. S.) l. c. 37.] The city might have been a proper party, but was not a necessary party, to the vestiture of jurisdiction in the county court by the terms of the act. The city was not entitled to any damages for cessation of its easement. The only person entitled to damages was that portion of the public whose property abutted upon and bounded the portion of the street sought to be vacated. Being thus possessed of full jurisdiction both of the necessary parties and the cause of action set forth in their petition, and “no opposition” having been made, the county court on the fourth of June, 1878, entered an order vacating the property described as a street and expressly reciting in said order its finding upon the evidence of the filing of the petition to vacate by the owners of the property bounding the strip of land as shown on a plat attached to the petition which had been filed more than thirty days before the court convened, and setting forth further, to-wit: “And it further appearing that notice of the pend-ency of said petition was duly given for the space of thirty days prior to the first day of the June term of this court, 1878, by written notices set up in three of the most public places in the said City of Kansas, on the 29th day of April, A. D. 1878, by the constable of Kaw township in said Jackson county as shown by his return duly certified on a copy of said notices. “And it further appearing that the consent of the owners of two-thirds of the property adjoining and — 589 — fronting the street asked to he vacated had been obtained to snch vacation, which consent had been dnly acknowledged before a notary public of said connty and filed for record in the recorder’s office of said county and no opposition being made to said petition. ’ ’ The foregoing facts and recitals contained in the order or judgment of the connty court showed that it had duly acquired jurisdiction according to the terms of the act over the necessary parties and the cause of action or subject-matter set forth in their petition, and the judgment so rendered discloses on its face the existence and finding of the court, of all the matters essential to the exercise of its jurisdiction to vacate the street as conferred 'upon it by the act of the Legislature. That order or judgment is not open to collateral attack, and no direct attack is made upon it by the pleadings in this case. The county as well as the probate court, is one of inferior jurisdiction, but the rulings of some of the earlier cases as to the absence of any presumption of jurisdiction when the records of those courts do not affirmatively disclose their jurisdiction have been repeatedly overruled. The law is now settled that the orders and judgments of county and probate courts, made in the exercise of their statutory powers over subjects and matters conferred upon them, are entitled to the same favorable presumptions arising, either from the statements or the silence of their records, which are accorded in like cases to circuit courts or others of general jurisdiction. [Johnson v. Beazley, 65 Mo. 250; Desloge v. Tucker, 196 Mo. l. c. 601, and cases cited; Ancell v. Bridge Co., 223 Mo. l. c. 227; Macey v. Stark, 116 Mo. l. c. 494, and cases cited; McDonald v. McDaniel, 242 Mo. l. c. 176; Covington v. Chamblin, 156 Mo. 574; State v. Fulton, 152 Mo. App. l. c. 348; Deweese v. Yost, 161 Mo. App. l. c. 12; Spicer v. Spicer, 249 Mo. 582.] — 590 — Under the rule governing the judgments of circuit courts and which, by the facts in this record, is madé applicable to the order of vacation of the county court, its jurisdiction to render that judgment can only be collaterally attacked by pointing to some fact, recital or statement contained within the entire record of its proceedings, which affirmatively proves that the court was without jurisdiction of the person or subject-matter. So far from that being- the case the recitals in the orders of vacation, together with the entire record, disclose that the county court was fully possessed of jurisdiction according to the terms and provisions of the act of the Legislature giving power to vacate streets. This conclusion disposes of all the objections in appellants’ brief aimed at the validity of the order of vacation of the streets except the suggestion (seemingly not pressed) that the title of the act of January 30, 1866, is not broad enough to cover the subjects dealt with in the body of the bill. We have examined the title and the bill. The substance of the bill has been set out and was in our opinion clearly comprehended within the scope of the title as far as the vacation of streets is concerned; for the title uses these words, “An Act providing for the vacation of streets, alleys, public squares and grounds of towns and cities,” etc., which is all that is necessary to validate the proceeding’s of the county court in the matter in hand. II. It is next suggested that the record discloses that the written consent of the persons owning two-thirds of the property, etc., to the vacation of the street was acknowledged by a notary public, instead of a justice of the peace. This is a highly technical and meritless assignment. At the time this acknowledgment was made, notaries public, as well as justices of the peace, — 591 — were authorized by the statute to take acknowledgments of instruments affecting real estate. [Laws 1877, p. 375; Laws 1877, p. 352.] Besides, the plaintiff is shown by the record to have enjoyed the estate for ten consecutive years through this duly recorded instrument, whereby its acknowledgment, even if defective, does not prejudice her rights. [R. S. 1909, sec. 6318.] III. It is further claimed by appellant that the power to vacate streets was vested in Kansas City by the Session Acts. [Laws 1875, p. 204, subdivision 7.] That paragraph does not in terms, confer the power to vacate streets. This power appears not to have been given in haec verba until the charter of 1908. [Charter of 1908, bottom of page 96, second paragraph from the bottom.] The rule is that the plenary power of the Legislature over streets, barring constitutional restrictions, may be exercised by itself or delegated by it to municipal authorities or other agencies, but the grant of the power to vacate must be in express terms or by necessary implication. [2 Elliott on Roads and Streets (3 Ed.), sec. 1177.] Tested by this rule there is nothing in the act of 1875 to indicate that the particular function of vacating streets was granted to Kansas City. That power was given to it by its subsequent charter. But it was clearly possessed by the county court at the time of the rendition of its judgment.' IV. Appellant also insists that there was a dedication of the strip of land in controversy from the continual user. That was a controverted question of fact which the court below found against appellant. — 592 — Appellant further complains that the tax deeds executed to plaintiff did not carry the title, because there was no evidence that the land was subject to taxation. There is no merit in this contention, for by the express provisions of the charter of Kansas City the deeds in question are made “prima-faeie” evidence, in the relation to the rights of the grantee in said deed, that the taxes were not paid at any time before the sale, and that the real property conveyed was subject to taxation for the year or years stated in the deed. [Charter of Kansas City 1889, art. 5, sec. 58, p. 56.] The statement in the tax deed also covered the point made by appellant that there was nothing to show that “one tract or parcel of land was sold each day.” [Charter of Kansas City 1889, secs. 44, 69; Sullivan v. Donnell, 90 Mo. 278; Meriwether v. Overly, 228 Mo. l. c. 236.] Appellant further complains that the deed fails to recite that a certificate of purchase was issued. The deed is a literal copy of the statutory form contained in the charter of Kansas City and it is therefore correct. [Sections 58, 75, Charter of 1889, p. 54; Williams v. Sands, 251 Mo. 147.] Neither is there any merit in the objection that the petition is multifarious even if it was before us. It does not lie in the mouth of defendants Ford, who claim title to the whqle strip, to interpose that objection. [Boggess v. Boggess, 127 Mo. 305; R. S. 1909, sec. 1733; Rinehart v. Long, 95 Mo. 396.] These conclusions necessarily dispose of this appeal. The judgment is affirmed. All concur.