City of St. Louis v. Busch

• Decision Date: 28 June 1913
• Citation: 158 S.W. 309
• Parties: CITY OF ST. LOUIS v. BUSCH et al.
• Court: Missouri Supreme Court

158 S.W. 309

CITY OF ST. LOUIS v. BUSCH et al.

Supreme Court of Missouri, Division No. 1.

June 28, 1913.

Rehearing Denied July 10, 1913.

1. EMINENT DOMAIN (§ 262) — REPORT OF COMMISSIONERS — CONFIRMATION — PRESUMPTIONS.

Where a city, after the filing of a report of condemnation commissioners, obtained leave of court to withdraw the same for correction, but there is nothing to show what correction, if any, was made, and the trial court acted upon and confirmed the report, as of the date of its original filing, and treated it as unaffected by any correction, the presumption of the validity and regularity of judgments of trial courts applies.

2. EMINENT DOMAIN (§ 237) — COMMISSIONERS' REPORT — CORRECTION.

Under the charter of the city of St. Louis, providing that the report of condemnation commissioners may be reviewed by the circuit court on written exceptions, and that the court shall make such order as justice may require, the circuit court might exercise its inherent power to correct clerical errors in the report.

3. EMINENT DOMAIN (§ 237) — COMMISSIONERS' REPORT — CORRECTION.

Where no recommitment or new appraisement was asked or awarded as to the report of commissioners in a condemnation proceeding, and the court's order was simply that the report might be corrected, probably in a matter of form, without providing any supplementary report, such correction did not make the

report a new one, but related back to the filing of the report; the fact that the proceeding was one in invitum being immaterial and in no way conflicting with the power of the court to correct a clerical misprision to cause the record to speak the truth.

4. EMINENT DOMAIN (§ 237) — REFERENCE OF COMMISSIONERS' REPORT — TIME.

In view of the St. Louis charter, providing that, when the condemnation commissioners' report is filed, the court shall give the city, upon application of the city counselor, reasonable time to report the result to the assembly, a correction relating back to the original report and not changing the amount of damages awarded did not, in the absence of any application therefor, require the granting of additional time for a second reference.

5. EMINENT DOMAIN (§ 262) — APPEAL — PREJUDICE TO PARTY.

The general rule that an appellant cannot complain of an error by which he is not prejudiced is applicable to condemnation proceedings.

6. EMINENT DOMAIN (§ 243) — PARTIES — PURCHASER FROM ORIGINAL OWNER.

A purchaser from the original owner after the commencement of a condemnation proceeding took title subject to such proceeding.

7. EMINENT DOMAIN (§ 263) — APPEAL — AFFIRMANCE.

Where the damages awarded and the benefits assessed were wholly unaffected by a correction of the condemnation commissioners' report relating back to the original report, the court will not reverse to compel the trial court to change the reference in the judgment to the date of the commissioners' report from May 7th, the date it was originally filed, to June 11th, the date the corrected report was filed.

Appeal from St. Louis Circuit Court; George H. Williams, Judge.

Condemnation proceeding by the City of St. Louis against August A. Busch and others, in which Sarah E. Coleman became a party. From an order overruling her motion for new trial, Sarah E. Coleman appeals. Affirmed.

J. L. Hornsby, of St. Louis, for appellant. Lambert E. Walther and E. E. Pearcy, both of St. Louis, for respondent.

BLAIR, C.

This proceeding was instituted in the circuit court of the city of St. Louis to open Louisiana avenue from Meramec street to Neosho street. There were 30 original defendants and about 300 other persons against whom benefits were assessed.

The regularity of the proceedings prior to the filing of the report of the commissioners is not questioned. That report was filed May 7, 1909, and by it damages were awarded to the Commonwealth Trust Company, trustee, and Pelagie Taylor, impleaded as the owners of the several interests in a parcel of land in United States survey 74, Carondelet common fields, St. Louis, through which parcel the proposed extension of Louisiana avenue passed. On the application of the city counselor plaintiff was granted until May 20, 1909, to report the result of the awards to the municipal assembly for its information and approval. On May 14th exceptions were filed, in one of which it was alleged that the commissioners had allowed the above-named defendants no damages for injury to the several parts of the parcel owned by them as stated; i. e., that the damages awarded were solely for that part of the parcel taken for use as part of the proposed new street. June 11, 1909, the court gave plaintiff leave to withdraw the report of the commissioners for correction and on the same day the corrected report was filed. What the correction was the record does not show, though respondent's additional abstract contains the statement that it was purely clerical. New exceptions were filed by the same defendants, like those filed May 14th, except that the correction made is alleged to have been sufficient to make the report show an award for damages both for the part taken and for the injury to the residue. Respondent brings here that part of the report relating to the award of damages to the parcel mentioned, and it clearly shows a sufficient assessment by the commissioners. This is from a report shown to have been sworn to on April 28, 1909. October 1, 1909, a hearing was had on the exceptions. Evidence was offered pro and con on the question as to the sufficiency of the damages awarded the defendants named, both for the parcel condemned and for the injury done the severed parts of the original tract. The city also offered evidence tending to show that in making their award the commissioners had taken into consideration all proper elements of damages to exceptors' property. The court, on October 11th, overruled the exceptions. On November 3, 1909, evidence that the assembly approved the report in proper time was filed, and the court rendered judgment prefacing it with this: "Now on this day this cause coming on to be heard upon the report of the commissioners, filed May 7, 1909, comes plaintiff by its attorneys," etc. "It is therefore considered, ordered, and adjudged that said report be and the same is in all things approved, confirmed," etc. No objection to the form of the judgment is suggested. On November 5th appellant was on her motion made a party defendant on the ground that she had purchased from the Commonwealth Trust Company, the property which, as above stated it had previously held as trustee for Pelagie Taylor. November 5, 1909, she filed her motion for new trial, and, this being overruled, she appealed.

Appellant contends "that the judgment of the circuit court is void" because (a) it purports to confirm the commissioners' report filed May 7, 1909, and that report had been withdrawn and superseded by one filed June 11, 1909; (b) no time after June 11, 1909, was given the city in which to report the result to the municipal assembly for its information and approval; and (c) there was (it is asserted) no evidence of the assembly's approval of the result of the commissioners' report; and (d) the court attempted to render a special judgment in favor of the city and against defendants for benefits assessed and to create a special lien and award special execution against property benefited.

1. The allegations in the exceptions to the effect that the commissioners had not allowed the Trust Company and Pelagie Taylor any damages except for that part of their property actually taken do not prove themselves, nor did they constitute...