City of Moberly v. Lotter

181 S.W. 991, 266 Mo. 457, 1915 Mo. LEXIS 139

• Court: Supreme Court of Missouri
• Decided: December 22, 1915
• Status: Published

Opinions

WALKER, J.

This is a proceeding to condemn for sewer purposes certain lands of plaintiffs in error in the city of Moberly. A change of venue was granted to the circuit court of Macon county, where, upon a hearing, a judgment was rendered for the defendant in error on the 11th day of January, 1912. On the 2nd day of December, 1912, a writ of error was sued out in the Kansas City Court of Appeals and in compliance with the order of said court a copy of the final .judgment in the cause was filed therein. Defendant in error thereupon filed a motion to quash the writ, alleging, among other things, that title to real estate was involved and that the .Supreme Court alone had jurisdiction. Whereupon the Court of Appeals ordered the cause transferred- to the Supreme Court. Defendant in error then filed in this court a motion to dismiss the cause, alleging that title to real estate was involved and hence the Court of Appeals had no authority to issue the writ of error by which the case was brought to that court; and, more than a year having elapsed since the final judgment and no writ having been sued out in the Supreme Court, that plaintiffs in error were not entitled to a review of the proceedings here. The motion was ordered to be considered with the case.

I. Is title to real estate involved in the determination of this case ?

F¡Lf Estate, It is held that the condemnation of land for a right of way of a railroad or for a highway so affects the title to real estate as to bring that class of cases upon appeal within the jurisdiction of the Supreme Court.

A cursory view may lead to the conclusion that in this class of cases only the easement and not the fee i§ affected; but while the fee remains in the owners, their right to the use and exclusive possession of the lands in either lessened or taken away, and as a consequence the title is affected to the extent of the injury inflicted. A condemnation of lands for a public sewer may not, after the work is completed, affect the owner’s interest therein to the same extent as in the class of cases mentioned, but the injury is of a like character, differing only in degree and sufficiently interferes Avith the owner’s proprietary rights to authorize the holding that the title to the land is involved. Railroad v. Wyatt, 223 Mo. l. c. 351; Baubie v. Ossman, 142 Mo. l. c. 502, and Railroad v. Schweitzer, 246 Mo. l. c. 128, are types of cases sustaining this conclusion.

,. . Jurisdiction. II. Was the Kansas City Court of Appeals without jurisdiction in this proceeding and hence its transfer of this case to the Supreme Court a x nullity? . It is contended, although the writ was timely sued out, that the latter court acquired no jurisdiction by reason of such transfer. It i« elementary that a writ of error is a writ of right and that it issues as of course upon the filing of a formal application therefor. [Smith v. Moseley, 234 Mo. l. c. 491; Sec. 2054, R. S. 1909.] While the proceeding to obtain the writ, is in the nature of a new action (Turner v. Eidmonston, 210 Mo. 411), its purpose as here invoked and as usually employed under our procedure is to set aside the judgment in the principal case. That this is its primary purpose is shown by the fact that the right to the writ or to an appeal is allowed in the same action at the option of the party. [Art. 16, chap. 21, R. S. 1909.] As thus employed it has been subjected to statutory regulation, not only as to the time within which it may issue, but who may join therein, the procedure necessary to be followed, what parties are affected and how (Secs. 2056-2078, R. S. 1909), and the course to be pursued if the writ is sued out in a court not having jurisdiction of the principal case. [Sec. 3938, R. S. 1909.]

The'Constitution clearly defines the exclusive appellate jurisdiction of the Supreme Court and the Courts of Appeals, the one by express declaration (Sec. 12, art. 6 and Sec. 5, Amendment 1884 to Art. 6, Constitution) and the other by implication or a process of exclusion applied to the declaration as to the jurisdiction of the Supreme Court authorized by the established rules of construction. [State ex rel. v. Rombauer, 101 Mo. 499; Langston v. So. Ry. Co., 66 Mo. App. 73; State ex rel. v. Allen, 45 Mo. App. 551.] These definitions limit the right of the respective courts to issue writs of error to cases reviewable in each. Concerning this matter there need be no controversy, because the language is explicit. But these limitations must be construed in connection with the power given by the Constitution (Sec. 3, Amendment 1884 to Art. 6, Constitution) to the General Assembly to provide by legislation for the transfer of cases from the Supreme Court to- the courts of appeals or vice versa, as has been done by the enactment of section 3938, supra. The authority conferred by this section is not an exercise of jurisdiction, but of a power to determine whether or not jurisdiction exists, and in its absence, as determined by the court, to transfer the case to the coui't invested with power to review and determine same, or, as was said in substance in In Re Garesche, 85 Mo. l. c. 471, it is the extension of the power of the court “to cases which for some reason get to one court when they should be in another.”

The recognition in In Re Garesche, supra, of this power of transfer under the Constitution, is approved in Schuster v. Weiss, 114 Mo. l. c. 172), and in Carmody v. Transit Company, 188 Mo. l. c. 575, where this court, after announcing that it had upon an investigation of the record, no other power, ordered the case transferred to the St. Louis Court of Appeals. In Rourke v. Holmes St. Ry. Co., 257 Mo. l. c. 569, this court, speaking through Bond, J., held that the power of the Legislature to pass an act providing for the transfer of cases from the Courts of Appeals to the Supreme Court is sustained solely on the ground of specific constitutional authority. This case further holds that the constitutional provision authorizing transfers is of continuing force and governs the disposition of cases not submitted when subsequent statutory changes were made under the authority of the Constitution in relation to the relative jurisdictions of the Supreme Court and the courts of appeals.

A statute of Louisiana similar in all of its material features to section 3938, supra, is apposite. In construing a statute authorizing the transfer of cases from the Supreme Court to a court of appeals of that State, the Supreme Court said, in substance: The court first determines whether the appeal has been properly brought up; and having found that there is an appeal to be dealt with it proceeds to determine whether the court has jurisdiction of it; if it finds that it has not, it dismisses the case, or, under the statute, transfers it to the appropriate court. We see in this transfer no greater exercise of jurisdiction than would be required for a dismissal. The court necessarily has jurisdiction to determine whether the appeal has been brought up; that is, whether the steps for bringing it up have been properly taken. The motion, therefore, to dismiss is overruled, and the present appeal having been brought to this court instead of the court having jurisdiction, it is ordered that the case be transferred to the Court of Appeals of the Parish of Orleans. [Bolden v. Barnes, 118 La. 274.]

Like persuasive precedents might be cited from courts of last resort in other jurisdictions, sustaining statutes authorizing the transfer of cases from one appellate court to another under constitutions similar to our own. The decisive manner, however, in which this court has repeatedly ruled upon this subject as applied to the transfer of appeals, and no difference in principle existing to prevent the application of the rule to the transfer of writs of error, the further burdening of this opinion with the citation to and discussion of other cases is not necessary.

The correctness of the conclusion as to the right of transfer in the case at bar is not affected by the fact that the proceeding is based upon a writ of error instead of an appeal. The constitutional provision defining the exclusive appellate jurisdiction of the Supreme Court and the courts of appeals, applies as well to writs of error as to appeals, and the rule announced is therefore as applicable to one class of cases as the other.

Nor does the fact that a writ of error constitutes a new suit militate against the right to transfer the case at bar. A writ of error is held to be a new suit in determining whether there is a lis pendens between tlie rendition of the judgment in the principal case in the lower court and the suing out of the writ. The trend of authority in this regard being that after the rendition of the judgment below and before the suing out of the writ, a purchaser in good faith takes title free from the final determination of the writ of error. [Macklin v. Allenberg, 100 Mo. l. c. 342; Macklin v. Schmidt, 104 Mo. 361; Pierce v. Stinde, 11 Mo. App. l. c. 369; Mathewson v. Railroad, 44 Mo. App. 97.] Only to the extent above indicated may a writ of error properly be designated as a new' suit and thus contra-distinguished from an appeal which is a continuation of the original suit. In other respects, aside from the procedure necessary to obtain a writ of error, both classes of cases possess the same general characteristics, their purpose being to bring up the principal case to the appellate court for review.

Cases involving original remedial writs reviewable under the Constitution only in the Supreme Court are not within the purview of the statute (Sec. ¿[938, supra), which by its terms is confined to appeals and writs of error. For example, where a writ of mandamus has been sued out in a court of appeals and the relator in support of same pleads a constitutional question, the proceeding will be dismissed, because the court has no constitutional power to consider the same, nor statutory authority to transfer the case to the Supreme Court. [State ex rel. v. Southard, 61 Mo. App. 296.]

The consideration of cases illustrative of the superintending control of the Supreme Court in preventing the courts of appeals from exercising jurisdiction in cases reviewable only in the Supreme Court, has no place in the determination of the matter here at issue. The exercise of this power is frequent and its propriety is not questioned. While it may be invoked to prevent the improper issuance of original remedial writs, it is equally applicable to prevent any usurpation of jurisdiction. To illustrate: If the Kansas City Court of Appeals in the instant case, upon bqing apprised of the fact that title to real estate was involved, had not on its own motion transferred the case to the Supreme Court, the latter, in a proper proceeding, could have compelled such transfer.

From the foregoing it follows that the motion of defendant in error to dismiss this case must be overruled.

Merits III. Dilatory matters having been disposed of, we find that not an exception was saved to any ruling of the trial court. There is no bill of exceptions or motion for a new trial or any reference to either. While the petition and the judgment, as parts of the record proper, are preserved, other matter, consisting principally of documentary evidence, has not been so preserved and presented as to authorize a review of same. Supplementing explicit statutes and the rules of this court based upon same, we have recently, in a number of well considered cases, defined the steps necessary to be taken to authorize the reviw of a case upon appeal or writ of error. [Coleman v. Roberts, 214 Mo. 634; Pennowfsky v. Coerver, 205 Mo. 135; Stark v. Zehnder, 204 Mo. l. c. 448; Harding v. Bedoll, 202 Mo. 625.] With these aids, a failure to so preserve the proceedings of the trial court as to insure a review of the same here, is inexcusable.

It is contended that the lands sought to be condemned are not described'with certainty; in addition to the description of same in the petition, which is sufficiently definite and comprehensive to meet the requirements of a proceeding of this character, we find this admission of plaintiffs in error in reg’ard thereto in the so-called abstract: “The petition contains a detailed description of the respective lands owned by each defendant from which said right of way for a sewer was to be carved, as well as a detailed description of tbe part to.be carved from each tract for said sewer route, all of which is omitted because it would unnecessarily encumber the record.” If the petition itself, as preserved in the record, did not contain a sufficient description, this admission would authorize us in determining that it conforms to the rules of good pleading in cases of this character.

The judgment is based upon this petition and conforms to the requirements of the statute (Sec. 9271, R. S. 1909) defining the course to be pursued by a city of the class here under consideration to enable it to acquire title to private land for public purposes.

The Legislature has authorized, in condemnation, proceedings of this character by cities of the third class, that the owners be divested of the fee in the lands taken (Sec. 9271, supra). The judgment rendered herein was in conformity with this statute. A difference of opinion may exist as to the wisdom of statutes of this character when .applied to the taking of lands by cities for rights of way, as in the instant case; but they violate no constitutional provision, our organic law in this regard being limited to the taking.of railroad tracks. [Sec. 21, art. 2, Constitution.] The ex-” tent of the power of condemnation of private property for public use being left to the discretion of the Legislature (Union Depot Co. v. Frederick, 117 Mo. l. c. 165; Boyce v. Mo. Pac. Ry. Co., 168 Mo. l. c. 590), the validity of the-judgment, so far as concerns the interest taken, is not to be questioned.

From all of which it follows that the judgment of the trial court, should be affirmed and it is so ordered.

All concur except Graves, J., who dissents in separate opinion in which Woodson, C. J., concurs.