Lexington & St. Louis Railroad v. Mockbee

63 Mo. 348

• Court: Supreme Court of Missouri
• Decided: October 15, 1876
• Status: Published

Opinions

Wagner, Judge,

delivered the opinion of the court.

This was a writ of error, prosecuted from a judgment of the circuit court making an entry nunc pro tunc. From the record it appears that on January 6th, 1869, commissioners were appointed by the circuit judge of Petfis county, on the petition of the plaintiff, to assess the damages, if any, caused to the lands of the defendant by reasons of the plaintiff’s road being located over and through them.

The 9th section of the plaintiff’s charter, under which the proceedings were had, provides, that: “if any owner of any tract of land through which such railroad shall pass, shall refuse to relinquish the right of way for said road to said company, or the necessary lands for depot, engines, or warehouses, water stations, stopping stages, or turn-outs, or if the- owners be infants, or persons of unsound mind, or non-residents of the State, the facts of the case shall be specially stated to the judge of the circuit court of the county in which said lands are situated; and said judge shall appoint three disinterested citizens of the county in which such lands are situated, to view said lands, who shall take into consideration the value of the land, and advantages and disadvantages of the road to the same, and shall report under oath what damages will be due to said lands, or any improvements thereon, stating the amount of damages assessed, and shall return a plat of the land thus condemned. Notice of such application to such judge shall be given to the owner of such lands five day's before the making of the application, if such owner resides in this State, or to his guardian ; and if such owner be a non-resident of this State, he may be served with actual notice or by an advertisement for four weeks in some public newspaper.”

The 10th section provides, that the persons appointed to view and value the lands shall file their report and plat in the county in which the land, or a part thereof, is situated, and if no valid objections are made to the report, the court shall render judgment in favor of the owner against the company, for the amount of the damages assessed, and after their payment a judgment shall be rendered, vesting in the company the title.

It is further provided that the objections to the report must be filed within ten days after the report is filed.

Some of the records in the proceeding are lost'and cannot be found; but it is shown that due notice was given to the defendant of the application for the appointment of commissioners, and the commissioners having filed their report in which they assessed no damages to the land, he appeared at the July Term, 1871, and filed his objections in writing to the report. The only ground of objection made by the defendant was, that the report was unjust in not awarding damages to him, and that the plat filed with the report was not correctly drawn.

These objections were heard and overruled by the court, and judgment was rendered for the company. Upon the judge’s docket the case is stated, and the following entry is made: “ Objections overruled, and judgment for defendant. Motion to set aside judgment, and for new trial. Motion overruled. Bill of exceptions tendered, signed and filed.” From this entry it appears very clear that the objections of the plaintiff there, who is defendant here, were overruled, and final judgment was rendered for the defendant, who is the present plaintiff. The clerk, in writing up the order of the court, rendered judgment that plaintiff take nothing by his action, and that defendant recover costs.

This was not the judgment required and authorized by the law governing the case. When the objections were overruled, and judgment given for the defendant, it should have been a judgment vesting the title in the company.

On the 5th day of January, 1874, the plaintiff filed its petition to have the proper judgment entered nunc pro tunc, and at the May Term, 1874, the court granted the prayer of the petition and rendered judgment accordingly. From this last judgment the defendant has prosecuted his writ of error.

Certain informalities are relied upon in the first proceeding, which, it is contended, render the first judgment invalid; hut we cannot notice them now.

The writ of error, now before us, was sued out more than three years after the rendition of that judgment, and, therefore, it cannot be brought up now. If we were, however, disposed to look into the proceedings of condemnation, we do not think the errors assigned are maintainable. They are mostly technical, and whatever there was of substance, was unquestionably waived.

The defendant was brought in on notice, and the court acquired jurisdiction. The only objections made were, that the plat was not accurate, and that damages should have been awarded to him. The court heard the testimony and decided against him. This was his reliance ithen, and he cannot be permitted to change his ground now.

The only question is, whether the .court did right in entering up the judgment nunc pro tunc. The law pointed out the judgment that the court was required to render, and whether it should render that judgment or not, was the matter in issue. Defendant presented objections against it, but they were overruled, and the judgment was ordered for the company as prayed for in the petition, and the clerk made a mistake or omission in writing up the formal judgment.

All this sufficiently appears of record and presented the requisite data to amend by. It follows that the court properly rendered the judgment, and its action should be affirmed. All the judges concur.