Opinion
No. 41743.
September 11, 1950. Motion to Transfer to Banc Overruled, October 9, 1950.
A motion to vacate a condemnation judgment in favor of a school district was properly overruled. It was not necessary for either the final judgment or the order appointing the commissioners to recite the inability of the parties to agree upon the compensation to be paid. The judgment was not void on the face of the "record proper". Title to real estate is involved, so the Supreme Court has jurisdiction.
1. APPEAL AND ERROR: Eminent Domain: Judgments: Motion to Vacate Condemnation Judgment: Appealable Order: Title to Real Estate Involved: Supreme Court Jurisdiction. An order overruling a motion to vacate a condemnation judgment is an appealable order. Title to real estate is involved, so the Supreme Court has jurisdiction.
2. EMINENT DOMAIN: Schools and School Districts: Inability of Parties to Agree. It must be pleaded and proved that the condemnor is unable to agree with the owner upon the compensation to be paid for the land to be appropriated.
3. JUDGMENTS: Motion Attacking Judgment: Irregularity on the Record Required. A motion under Sec. 1267 R.S. 1939 attacking a final judgment must be based upon an irregularity which is patent on the record and not one depending upon proof dehors the record. This includes the "record proper".
4. EMINENT DOMAIN: Schools and School Districts: Inability to Agree Upon Compensation: Recital in Final Decree Not Required. Where the petition contained a sufficient allegation that the parties had not been able to agree upon the compensation it was not necessary that the so-called final condemnation decree contain such a finding.
5. EMINENT DOMAIN: Schools and School Districts: Pleading: Inability to Agree Upon Compensation: Admission in Answer: Recital in Order Appointing Commissioners Not Required: Subsequent Abandonment of Answer Immaterial. Where the petition alleged the inability of the parties to agree upon the compensation and the answer admitted such inability, it was not necessary for the order appointing the commissioners to recite such inability. And it is immaterial that the answer containing such admission was subsequently abandoned.
6. EMINENT DOMAIN: Schools and School Districts: Judgments: Valid Condemnation Judgment: Motion to Vacate Properly Overruled. The condemnation judgment was valid on the face of the "record proper" and the motion to vacate the judgment was properly overruled.
Appeal from Mississippi Circuit Court; Hon. R.B. Oliver III, Judge.
AFFIRMED.
Von Mayes and Haw Haw for appellants.
(1) A void judgment may be set aside on a motion filed at a subsequent term and such motion is a collateral attack and the proper remedy. Smith v. Young, 136 Mo. App. 65, 117 S.W. 628; State ex rel. v. John Gills Sons Co., 220 S.W. 978; State ex rel. v. Hall, 296 Mo. 201, 246 S.W. 35; Holman v. Renaud, 141 Mo. App. 399, 125 S.W. 843; 34 C.J., sec. 811, p. 509. Even on appeal from a void judgment the merits are not reviewed. St. Louis v. Glasgow, 254 Mo. 262, 162 S.W. 596. (2) When the court exercises a general common-law jurisdiction the jurisdictional fact need not appear in the petition, proof or judgment, but when it exercises a noncommon-law or special vested jurisdiction, with no condition precedent exacted, such fact must appear in the petition, proof and judgment to avoid a direct attack, but not a collateral attack. City charters are to be considered as well as statutes. State v. Pemberton, 235 Mo. App. 1128, 151 S.W.2d 111; Glenn v. Wright County Court, 215 S.W. 253; Naeglin v. Edwards, 228 S.W. 764; Grassman v. Patton, 186 Mo. 661, 85 S.W. 548; City of Tarkio v. Clark, 186 Mo. 285, 85 S.W. 329; State ex inf. v. Imhoff, 291 Mo. 603, 238 S.W. 122; Connors v. St. Joseph, 237 Mo. 612, 141 S.W. 638; Chandler v. Reading, 129 Mo. App. 63, 107 S.W. 1039; Fore v. Hoke, 48 Mo. App. 254; Lingo v. Burford, 112 Mo. 149, 20 S.W. 459; State ex rel. v. Wilson, 216 Mo. 215, 115 S.W. 549; Loveland v. Davenport, 201 S.W.2d 518; Kansas City v. Smart, 128 Mo. 272, 30 S.W. 773; Steinbaum v. Wallace, 176 S.W.2d 683; 15 C.J., sec. 33, p. 734. (3) But when the court exercises only special statutory powers every provision of the statute must be complied with for jurisdiction to attach and this must appear affirmatively upon the face of the record to avoid collateral attack, the court not exercising a general or special vested jurisdiction. City of St. Louis v. Koch, 169 Mo. 587, 70 S.W. 143; Sassman v. State Highway Commissioners, 45 S.W.2d 1093; Jones v. Gleason, 209 S.W.2d 536; State ex rel. v. Bird, 73 S.W.2d 821, 228 Mo. App. 800; Sawyer v. Burris, 141 Mo. App. 108, 121 S.W. 321; Crabtree v. Inc. Co., 341 Mo. 1173, 111 S.W.2d 103; K.C., St. Jo. C.B.R. Co. v. Campbell, 62 Mo. 585; Ex parte O'Brien, 127 Mo. 477, 30 S.W. 158. (4) And where jurisdiction to proceed is withheld by statute until the performance of an expressed condition precedent, performance thereof must affirmatively appear upon the face of the record in any proceeding, eliminating presumptions in favor of the record. Leslie v. St. Louis, 47 Mo. 474; Seafield v. Bohne, 169 Mo. l.c. 547, 69 S.W. 1051; State ex rel. v. Seehorn, 283 Mo. 508, 223 S.W. 664; State ex rel. v. Flynn, 348 Mo. 525, 154 S.W.2d 52; St. Louis v. St. Louis-S.F. Ry. Co., 330 Mo. 499, 50 S.W.2d 637; Nevatt v. Normal School, 79 Mo. App. 198. (5) Performance of a condition precedent fixed by statute partakes of the subject-matter and cannot be waived or admitted in any manner. The fact must actually exist and the court must judicially and expressly ascertain it. The parties cannot for themselves decide the question. They can only prove or admit ultimate facts upon which the court may base its finding. St. Louis v. Glasgow, 254 Mo. 262, 162 S.W. 596; United Cemeteries v. Strother, 342 Mo. 1155, 119 S.W.2d 762; McClain v. K.C. Bridge Co., 83 S.W.2d 132; Steinbaum v. Wallace, 176 S.W.2d 683. (6) In condemnation proceedings under the general statutes, Sections 1504 and 10348, R.S. 1939, the latter pertaining to schools, which require the condemnor to first make a bona fide attempt to agree with the owner upon the amount of compensation before instituting proceedings, performance of such condition precedent must be alleged, though not so required by statute, proved and recited in the judgment or some order of the court, and, if not so recited, such judgment is subject to collateral attack. No pleadings upon the part of the owners are required. Ellis v. Pac. Ry., 51 Mo. 200; Cunningham v. Pac. Ry., 61 Mo. 33; School Dist. v. Kelsey, 355 Mo. 478, 196 S.W.2d 860; In re Rogers, 243 Mich. 517, 220 N.W. 808; Mo. Power Light Co. v. Creed, 32 S.W.2d 783. (7) In a collateral proceeding by motion to set aside a judgment (not in the nature of a writ of error coram nobis) extrinsic evidence to impeach or sustain the judgment is inadmissible, and, if properly made part of the record, cannot be weighed. State ex rel. v. John Gills Sons Co., 220 S.W. 978; Cunningham v. Pac. Ry., 61 Mo. 33; Robinson v. Martin Wunderlich Const. Co., 72 S.W.2d 127; Cory v. Chicago, B. K.C. Ry. Co., 100 Mo. 282; In re Lydia Sisk, 305 Mo. l.c. 328, 265 S.W. 936; Ry. v. Ry., 100 Mo. 419, 13 S.W. 710. (8) It may be conceded that judgments in general condemnation proceedings, though erroneous on the merits or irregular in form, are conclusive as to collateral attacks when the jurisdiction of the subject-matter and person and compliance with the statutes affirmatively appear upon the face of the record. Investment Co. v. Const. Co., 143 Mo. App. 357, 126 S.W. 788; Rosenhein v. Hartsock, 90 Mo. 357; Coleman v. Dalton, 71 Mo. App. 14. (9) The jurisdictional fact must be found recited in the final judgment if not in some preliminary order. 33 C.J., secs. 125-6, pp. 1194-5; Chandler v. Reading, 129 Mo. App. 63, 107 S.W. 1039; Aufdersheide v. Same, 18 S.W.2d 119. (10) In case of non-performance of a condition precedent, it is essential that a valid excuse be both alleged and proved. Streib v. Lodge, 40 S.W.2d 519. (11) Secs. 1504 and 10348, R.S. 1939, provide certain excuses for not making an attempt to agree and by the maxim "Expressio unius est exclusio alterius" any other excuse is denied. No excuse is alleged. School Dist. v. Jones, 220 Mo. 510, 129 S.W. 705; Rust v. Dames, 142 S.W.2d 798; St. Louis v. Glasgow, 254 Mo. 262; Kroger v. St. Louis, 341 Mo. 62, 106 S.W.2d 435. (12) As the court is to determine judicially and expressly upon probative facts its own jurisdiction of the subject-matter, the allegation in the petition that the parties were "unable to agree," not being an allegation of fact but a bald conclusion of the pleader, or an invasion of the province of the court, would not of itself, though admitted, or not denied, in a direct attack support a judgment or recital of the court to the effect there was an attempt to agree. The allegation as an allegation after judgment may be sufficient but not as proof. Meredith v. Pound, 92 S.W.2d 698; Steinbaum v. Wallace, 176 S.W.2d 683; 15 C.J., sec. 33, p. 734; Howard v. Thornton, 50 Mo. 291; State v. Public Service Commission, 110 S.W.2d 1121. (13) Whether raised by the parties or not, the first question to be judicially decided by any court in any case is whether it has jurisdiction in point of fact. Krummemacher v. Western Auto Supply Co., 206 S.W.2d 991: State ex rel. Kansas City Pub. Serv. Co. v. Waltner, 350 Mo. 1121, 169 S.W.2d 697. (14) As the property owner does not have to plead in a condemnation proceeding and any pleading filed by him being unnecessary, any allegation therein is not a judicial admission, and an allegation in a necessary pleading, when such pleading is abandoned, is not conclusive when offered in evidence. Answers have been stricken as unnecessary in such proceedings. 22 C.J., sec. 383, p. 339, sec. 380, p. 336; Leis v. Mass. Bonding Ins. Co., 125 S.W.2d 906; Mo. Power Light Co. v. Creed, 32 S.W.2d 783; 29 C.J.S., sec. 262, p. 1233.
Ward Reeves for respondents.
(1) Much is said in appellants' brief about the "face of the record" and what it fails to show, and they seem to imply that only what appears in the final judgment constitutes the "face of the record." This is a misconception. The phrases, "face of the record," "judgment record," and "judgment roll" are used interchangeably and as synonymous terms by the courts, and embrace, among other things, all pleadings, orders and judgments, whether interlocutory or final, and motions based on jurisdictional grounds. 16 Words and Phrases, p. 8; 23 Words and Phrases, p. 246, and 1949 Cumulative Annual Pocket Part, p. 88; Mayes v. United Garment Workers, 320 Mo. 10, 6 S.W.2d 333. (2) At the time of the entry of the final judgment, the trial court took judicial notice of all prior proceedings and orders in this case, including the evidence offered on the motion to quash report of Commissioners on the four specified grounds, attacking the court's jurisdiction over the subject-matter. Thompson v. Scott, 323 Mo. 790, 19 S.W.2d 1063; Libbe v. Libbe, 166 Mo. App. 240. (3) Complete jurisdiction over the subject-matter was conferred by the pleadings, and errors, if any, thereafter occurring could be corrected only by appeal. Secs. 1504-1508, R.S. 1939; Railroad v. Kemper, 256 Mo. 279; State ex rel. v. Moore, 322 Mo. 329. 18 S.W.2d 892; Sullinger v. West, 211 S.W. 65; Jones v. Cook, 359 Mo. 1130, 193 S.W.2d 494. (4) The admission of record, as shown by defendants' answer on file at the time of the hearing of the petition and appointment of Commissioners, took the issue of failure to agree on a price out of the case. "Consent of parties cannot give jurisdiction; but parties may admit the existence of facts which show jurisdiction and courts may act judicially on such an admission and their action be binding and effective." So the "face of the record" shows this jurisdictional fact. Hadley v. Bernero, 103 Mo. App. 549; Steinbaum v. Wallace, 237 Mo. App. 841, 176 S.W.2d 683. (5) The statute does not require any specific finding of record, nor even a final judgment of record, to confer title for school purposes. Secs. 1504-1508, R.S. 1939; Bowzer v. State Highway Comm., 170 S.W.2d 399; State ex rel. v. Oakley, 354 Mo. 124, 188 S.W.2d 820; State ex rel. v. Sartorius, 340 Mo. 832, 102 S.W.2d 890; State ex rel. v. Bruce, 334 Mo. 312, 66 S.W.2d 847. (6) The defendants made the specific admission in the answer for the obvious purpose of dispensing with proof on the question of inability to agree on price. St. Joe Term. Ry. Co. v. H. St. J. Ry. Co., 94 Mo. 535; K.C. Suburban Belt Ry. Co. v. K.C., St. L. C. Ry. Co., 118 Mo. 599; Consolidated School Dist. v. O'Malley, 343 Mo. 1187, 125 S.W.2d 818; City of Kirkwood v. Venable, 351 Mo. 460, 173 S.W.2d 8. (7) Maybe this admission could have been as well made orally, as by a pleading at the time "the sufficiency of the petition and the necessity for the condemnation are determined by the court, or the judge thereof in vacation." Railroad v. Kemper, 256 Mo. 279. (8) In either form of admission noted above, it is a judicial admission and conclusive on defendants because made for the purpose of dispensing with proof of the fact admitted. 23 Words and Phrases, pp. 272-273; Probst v. Basket Box Co., 200 Mo. App. 568; State ex rel. Basket Box Co. v. Reynolds, 284 Mo. 372; Beattie Mfg. Co. v. Gerardi, 214 S.W. 189. (9) The averment in the petition of inability to agree on a price or compensation for the property is sufficient in its statement of facts. Cases cited under Point (12) of appellants' brief do not support their contention. Sec. 10348, R.S. 1939; Corey v. Chicago, etc., Ry. Co., 100 Mo. 282; School District v. Kelsey, supra; So. Ill. Mo. Bridge Co. v. Stone, 194 Mo. 175. (10) The jurisdictional facts were sufficiently pleaded in the petition to confer jurisdiction over the subject-matter, and neither evidence to show failure to agree on price nor a finding on this uncontroverted issue was essential to the validity of the proceedings. Secs. 1504-1506, 10348, R.S. 1939; Cory v. Ry. Co., 100 Mo. 282; Chicago, etc., Ry. Co. v. Randolph-Town-Site Co., 103 Mo. 451; So. Ill. Mo. Bridge Co. v. Stone, 194 Mo. 175. (11) In a condemnation proceeding the filing of a sufficient petition and the service of the notice (or entry of appearance) required by statute confers jurisdiction over the subject-matter and the person, and any errors thereafter occurring in the proceeding will not deprive the court of jurisdiction over the subject-matter, nor can such errors be corrected, except by appeal or other direct attack, and such errors cannot form a basis for a collateral attack on the final judgment. Quayle v. M., K. T. Ry. Co., 63 Mo. 465: Mitchell v. Rapid Transit Ry., 138 Mo. 326; Railroad v. Kemper, 256 Mo. 279; So. Ill. Mo. Bridge Co. v. Stone, 194 Mo. 175; Wilson v. Union Electric L. P. Co., 59 F.2d 580; Loveland v. Davenport, 239 Mo. App. 818, 201 S.W.2d 518. (12) When the court entered its orders appointing and reappointing the Commissioners, and at the time of entering its final judgment, it will be conclusively presumed in this collateral attack that the court determined the prerequisite jurisdictional pleaded facts in favor of its jurisdiction and no finding of record is necessary. State v. Dugan, 110 Mo. 138; Lingo v. Burford, 112 Mo. 149; State ex rel. v. Wilson, 216 Mo. 215; Leonard v. Sparks, 117 Mo. 103; State v. Dugan, 110 Mo. 138; State v. Searcy, 39 Mo. App. 393; State v. Miller, 110 Mo. App. 542; In re Lydia Sisk, 305 Mo. 328; Inter-River Drain. Dist. of Mo. v. Henson, 99 S.W.2d 865; Connors v. St. Joseph, 237 Mo. 612; State ex rel. v. Moore, 322 Mo. 329, 18 S.W.2d 892. (13) The rule is that judgments and orders in special proceedings are within the rule prohibiting collateral attack. This rule has been applied in condemnation proceedings just the same as in ordinary actions. 49 C.J.S. 802, sec. 406; State ex rel. Highway Comm. v. Moore, 322 Mo. 329, 18 S.W.2d 892; Tremayne v. St. Louis, 320 Mo. 120, 6 S.W.2d 935; Connors v. St. Joseph, 237 Mo. 612; Leonard v. Sparks, 117 Mo. 103; Union Depot Co. v. Frederick, 117 Mo. 138; Mitchell v. Rapid Transit Ry., 138 Mo. 326; State ex rel. General Motors v. Brown, 330 Mo. 220, 48 S.W.2d 857; Gentry, Atty.-General v. Toliver, 315 Mo. 737, 287 S.W. 312; Miller v. Keaton, 236 Mo. 694: State ex rel. v. Wilson, 216 Mo. 215; State v. Dugan, 110 Mo. 138; Thompson v. Ry. Co., 110 Mo. 147; State v. Searcy, 39 Mo. App. 393; State v. Miller, 110 Mo. App. 542; Inter-River Drainage Dist. v. Henson, 99 S.W.2d 865. (14) If the power of the court to decide and adjudge depends upon facts dehors the record, then the judgment is valid until it is reversed on appeal or annulled by other direct attack. Crane v. Deacon, 253 S.W. 1068; Hadley v. Bernero, 103 Mo. App. 549; Seafield v. Bohne, 169 Mo. 537; Cobe v. Ricketts, 111 Mo. App. 105; Cox v. Boyce, 152 Mo. 576. (15) The petition alleged that the parties were unable to agree on compensation to be paid for the property. This conferred jurisdiction of the subject-matter. The applicable rule then is, "Where the court's right to take jurisdiction depended on facts in pais, it is presumed, in a collateral proceeding, if jurisdiction is retained, that the court found such facts in favor of jurisdiction." Sullinger v. West, 211 S.W. 65; McIntyre v. Frisco Ry., 286 Mo. 234; Corbin v. Stressner, 220 S.W.2d 66; Jones v. Cook, 359 Mo. 1130, 193 S.W.2d 495. (16) The hearing on the petition may be in chambers, where no record on the hearing is required to be kept; and in the absence of any recital or showing to the contrary, it will be presumed the judge or court found the existence of the pleaded prerequisite facts upon which jurisdiction depended in order to proceed with the case and to make an order appointing commissioners. Thompson v. Ry. Co., 110 Mo. 147; Connors v. St. Joseph, 237 Mo. 612. (17) The record brought here on this appeal shows the parties could not agree on a price for the property. The only error claimed is that the final judgment failed to make a finding on this uncontested fact. If this be error, it is harmless, and the judgment is immune to collateral attack. This general rule has been followed in condemnation proceedings. Laws 1943, p. 395, sec. 140 (b); Summers v. Cordell, 187 S.W. 5; Seafield v. Bohne, 169 Mo. 537.
This is an appeal by J.B. Latshaw and Nell Latshaw, defendants in a condemnation proceeding instituted by the Caruthersville School District No. 18 and the members of the Board of Directors of said school district, from an order overruling their motion to vacate and set aside the judgment entered in such proceeding. An appeal lies from an order overruling a motion to vacate a judgment. Harrison v. Slaton, (Mo. Sup.) 49 S.W.2d 31, 34; Ford v. Ford, (Mo. Sup.) 24 S.W.2d 990, 992. The motion to vacate challenged the validity of the judgment entered in the condemnation proceeding. Whatever title respondents have to the property sought to be condemned is derived from the condemnation proceeding. Thus, the motion to vacate seeks to vitiate respondents' muniment of title. Title to real estate is involved and this Court has appellate jurisdiction. Nettleton Bank v. McGauhey's Estate, 318 Mo. 948, 2 S.W.2d 771: Art. V, Sec. 3, Constitution of 1945.
Respondents filed suit against appellants (owners in fee simple of the tract of land described in the petition) and others, to condemn and acquire real estate as a site for additional school buildings and playground. The suit was brought under the provisions of Sec. 10348, R.S. 1939, Mo. R.S.A. § 10348, which empowers school districts, through their Boards of Directors, to condemn real estate in the manner provided in Art. 2, Chap. S.R.S. 1939 (Secs. 1504-1508, R.S. 1939, Mo. R.S.A. §§ 1504-1508). Both Sec. 10348 and Sec. 1504, R.S. 1939, Mo. R.S.A. §§ 10348-1504, require, as a condition of the right to condemn, that the condemnor be unable to agree with the owner upon the price or proper compensation to be paid for the land to be appropriated. It has been held that inability of the parties to agree upon compensation to be paid is jurisdictional and must be pleaded and proved. School Dist. of Clayton v. Kelsey, 355 Mo. 478, 196 S.W.2d 860, 861; State ex rel. State Highway Commission v. Williams. (Mo. App.) 69 S.W.2d 970, 971. Accordingly, appellants' motion to vacate the judgment in the instant case raises the issue that the judgment is void and the Circuit Court was without jurisdiction to render it because: "It does not appear affirmatively upon the face of the record * * * that plaintiffs * * * made a bona fide attempt [9] to agree with defendants upon the amount of compensation to be paid them for the property."
Appellants' motion to vacate was filed after the expiration of the term of court at which the so called "Final Judgment in Condemnation" was entered. It seeks to impeach the judgment for irregularity or invalidity which is said to be patent upon the face of the record in the proceeding. Authority for such a motion, if made within three years after the expiration of the term at which the judgment was rendered, is contained in Sec. 1267, R.S. 1939, Mo. R.S.A. § 1267. Such a motion under the statute "must be one based upon an irregularity which is patent on the record and not one depending upon proof dehors the record." State ex rel. Potter v. Riley, 219 Mo. 667, 681, 118 S.W. 647; Harrison v. Slaton, supra; Crabtree v. Aetna Life Insurance Co., 341 Mo. 1173, 111 S.W.2d 103, 107. It is, in legal effect, a collateral attack on the judgment and such an attack will not lie unless a judgment is void upon the face of the record. Ray v. Ray, 330 Mo. 530, 50 S.W.2d 142, 143; Howey v. Howey, (Mo. Sup.) 240 S.W. 450; Inter-River Drainage Dist. v. Henson, (Mo. App.) 99 S.W.2d 865; Ecton v. Tomlinson, 278 Mo. 282, 212 S.W. 865. The validity of a judgment is not to be determined from the face of the judgment alone, but from an examination of the record or "record proper." Such a record includes, among other things, the petition and subsequent pleadings. It includes, generally, "those matters which, by positive law, or by rule of practice, are made `of record', and as such are self-preserving, and those matters occurring during the progress of the trial of a cause which otherwise would not be of record unless made so, and preserved, by bill of exceptions filed by order of the court." State ex rel. May Department Stores Co. v. Haid, 327 Mo. 567, 38 S.W.2d 44, 50; see also In re Moore's Guardianship, (Mo. App.) 148 S.W.2d 116, 118; In re Arnold's Estate. (Mo. App.) 176 S.W.2d 837, 838; Martone v. Bryan, 233 Mo. App. 1249, 130 S.W.2d 962, 965.
The record facts shown in the transcript on this appeal (omitting certain facts not considered essential to a decision) are as follows: The original petition for condemnation was filed in the Circuit Court of Pemiscot County on July 22, 1948. Appellants filed an answer thereto on July 26, 1948. On July 27, 1948, respondents filed their first amended petition which alleged that they had been unable to agree with appellants upon the damages occasioned by the acquisition of the property described in the petition and which recited the adoption of a resolution by the Board of Directors of the School District which provided, in part:
"WHEREAS, this Board of Directors has heretofore made an offer for the purchase price of the above-described real estate to the present owners of said real estate and this Board of Directors have been unable to agree upon a price:
"THEREFORE, BE IT RESOLVED that the attorney heretofore selected by this Board of Directors be authorized to proceed by whatever legal proceedings he may deem necessary to condemn and appropriate the above described real estate for the uses aforesaid." On July 29, 1948, appellants filed an amended answer to this petition. This answer admitted the allegations of the petition concerning the inability of the parties to agree upon the price of the land to be acquired and also admitted that the resolution set out in the amended petition was unanimously adopted by the Board of Directors of the School District. On August 4, 1948, the Court entered an order finding "that due notice of the pendency of this suit has been given to all parties in interest ten days or more prior to this date" and the Court thereupon appointed three commissioners to assess the damages appellants would sustain by reason of the appropriation of the land described therein. The commissioners so appointed took oath before the Clerk of the Court on August 9, 1948. On September 7, 1948, appellants filed a second amended answer and on October 19, 1948, they filed a third amended answer. Both of these answers denied the allegations of respondents' amended petition alleging the inability of the parties to agree upon the price for the land to be appropriated and the adoption of the resolution [10] of the Board of Directors of the School District previously referred to. Subsequently, the third amended answer was withdrawn by appellants. On successive changes of venue, the case went to the Circuit Court of Mississippi County. The report of the commissioners appointed on August 4, 1948, was filed on January 7, 1949. The report assessed appellants' damages at $28,800. This amount was paid into Court for the use and benefit of the defendants in the proceeding. No exceptions were filed to the commissioners' report or the assessment of damages. On January 18, 1949, appellants filed their motion to dismiss the proceedings and to strike the report of the commissioners contending (1) that the venue of the proceeding could not be changed until after the commissioners filed their report in the Circuit Court of Pemiscot County and (2) that the School District was attempting to condemn property in excess of that needed for the public improvement contemplated. Subsequently the motion to dismiss was dismissed without prejudice, and on February 7, 1949, the Court entered a so called "Final Judgment in Condemnation" reciting that no objections or exceptions had been filed to the commissioners' report (the time therefor having expired); reciting the payment into Court of the damages assessed; and confirming and approving the commissioners' report. It recited further: "It is further ordered, adjudged and decreed that the title and right of possession of the plaintiffs be confirmed in them for public school purposes, as set forth in plaintiffs' petition, in and to the real estate described in and set out in said petition." Then followed a specific description of the property appropriated.
The contentions of appellants may be summarized as follows: Where the Court exercises jurisdiction in a special statutory proceeding (such as a condemnation suit) no presumptions or intendments favorable to the validity of the proceedings are indulged and the jurisdiction of the Court must affirmatively appear on the face of the record. Since the record fails to show a finding as to the existence of the jurisdictional fact that the parties were unable to agree upon a price for the property before the action was instituted, the record fails to show that the Court had jurisdiction and the judgment is void. The admission contained in defendants' amended answer to the first amended petition does not establish such jurisdictional fact because: (1) jurisdiction of the subject matter of an action cannot be conferred by consent, (2) no pleadings upon the part of appellants were required, and (3) the amended answer containing the admissions was abandoned by the filing of additional amended answers which did not contain such admissions, and an abandoned pleading is not part of the record in the case.
Sec. 1506, R.S. 1939, Mo. R.S.A. § 1506, provides that the Court, on being satisfied that due notice of the pendency of the petition has been given, shall appoint three commissioners who shall assess the damages the owners may sustain; that the commissioners shall make a report, under oath, as to the assessment of damages; that the condemnor shall pay to the Clerk of the Court, for the use of the party entitled thereto, the amount of damages assessed; and that on making such payment, it shall be lawful for the condemnor to hold the property for the use for which it has been appropriated. It is, of course, essential that the petition allege the jurisdictional fact that the parties were unable to agree upon the compensation to be paid for the property. School Dist. of Clayton v. Kelsey, supra. This essential allegation was in the petition in the instant case and there can be no question as to the sufficiency of the allegation made. Hannibal St. Joseph R. Co. v. Muder, 49 Mo. 165, 166.
There is no specific requirement in the statute that the Court enter of record in the proceedings a finding as to the existence of the jurisdictional fact. No formal judgment or decree of condemnation was necessary to vest respondents with title to the land appropriated. Accordingly, it is of no importance that the so called "Final Judgment in Condemnation" did not contain a finding that the parties were unable to agree upon a price. Bowzer v. State Highway Commission, (Mo. Sup.) 170 S.W.2d 399, 402; State ex rel. Union Electric Light [11] Power Co. v. Bruce, 334 Mo. 312, 66 S.W.2d 847, 849; St. Louis K.C. Ry. Co. v. Donovan, 149 Mo. 93, 50 S.W. 286. In State ex rel. City of St. Louis v. Oakley, 354 Mo. 124, 188 S.W.2d 820, 821, we said:
"In condemnation suits under our general statutes we have consistently held that the easement in or title to private property is fully acquired by the condemnor when it pays to the owner, or into court for him, the amount of damages awarded by commissioners legally appointed, although the judgment does not become final and appealable until all exceptions are determined and the commissioners' report finally approved. State ex rel. State Highway Com'n of Missouri v. Day, 327 Mo. 122, 35 S.W.2d 37, 38, and cases cited. In the Day case we said: `The condemnor in every case, in the exercise of a discretion not subject to judicial review, makes its own appropriation of private property for public use. When it pays to the owner of the property so appropriated just compensation, the title passes by operation of law. The only function that the court performs in a condemnation proceeding is the ascertainment of just compensation, unless the question of public use be drawn into the proceeding. It may in its judgment make pronouncement of condemnation, but, if so, its judgment in that respect is a mere empty form.'"
The petition in the instant case was sufficient to confer jurisdiction over the subject matter of the action. The appellants appeared and filed answers. The commissioners were appointed, assessed the appellants' damages, filed a report, and the amount of damages assessed was paid into Court. No exceptions were filed to the commissioners' report. The functions of the Court had been fulfilled and these proceedings were sufficient to vest respondents with title to the property condemned unless it can be said, upon the record in the instant case, that the commissioners were not validly appointed. Bowzer v. State Highway Commission, supra; State ex rel. City of St. Louis v. Oakley, supra, and cases there cited.
Was it necessary to the validity of the appointment of the commissioners that the order appointing them contain an express finding or recital that the parties had been unable to agree upon the amount of compensation to be paid appellants for the property? Sec. 1506, R.S. 1939, Mo. R.S.A. § 1506, does not expressly require that such a finding be stated in the order of appointment. It may be argued that the entry of the order must, of necessity, involve a finding by the Court of the existence of this jurisdictional fact. Be this as it may, the validity of the order of appointment should be determined by the record in existence at the time the order was entered. When this order was entered on August 4, 1948, the amended petition was sufficient to the jurisdiction of the Court. The amended answer then on file admitted the allegations of the petition that the parties had been unable to agree upon the price of the property. Upon this record, the Court entered the order appointing the commissioners. While it is true that the parties may not confer jurisdiction of the subject matter of an action by consent, there is no reason why appellants may not admit the existence of a fact essential to jurisdiction and the Court was justified in acting upon such an admission. Steinbaum v. Wallace, 237 Mo. App. 841, 176 S.W.2d 683, 688; Hadley v. Bernero, 103 Mo. App. 549, 78 S.W. 64.
It is also true that abandoned pleadings are not considered to be a part of the record proper in a case, but this general rule has no application in the instant case where the validity of the appointment of the commissioners must be determined by the record as it existed at the time such appointment was made. For this purpose, the answer of appellants containing the admission previously discussed is not to be considered an abandoned pleading.
Finally, appellants have argued that the admission contained in their answer is of no effect because defendants in a condemnation proceeding are not required to plead. Pleadings are not required on the part of a defendant in such a proceeding to entitle him to recover full damages for the appropriation of his land, (see Missouri Power Light Co. v. Creed, 32 S.W.2d 783, 786, cited by appellants) but [12] they are appropriate and necessary to raise other issues. Consolidated School Dist. No. 2 v. O'Malley, 343 Mo. 1187, 125 S.W.2d 818, 819. There is no reason why a defendant in a condemnation proceeding may not file an answer admitting (or denying) facts alleged in the petition, and the Court may rely and act upon such admissions.
We hold that the commissioners were validly appointed and since appellants filed no exceptions to the commissioners' report, and respondents had paid into Court the amount of damages assessed, the record shows on its face that the Court was vested with jurisdiction and the title to the property appropriated passed to respondents by operation of law. State ex rel. State Highway Commission of Missouri v. Day, 327 Mo. 122, 35 S.W.2d 37, 38. Appellants' motion to vacate and set aside the judgment was properly overruled.
The judgment is affirmed. Van Osdol and Lozier, CC., concur.
The foregoing opinion by ASCHEMEYER, C., is adopted as the opinion of the court. All the judges concur except Hollingsworth, J., not voting because not a member of the court when the case was submitted.