St. Louis, Keokuk & Northwestern Railroad Company v. Clark

• Decision Date: 23 December 1893
• Citation: 24 S.W. 157,119 Mo. 357
• Parties: St. Louis, Keokuk & Northwestern Railroad Company v. Clark et al., Appellants
• Court: Missouri Supreme Court

24 S.W. 157

119 Mo. 357

St. Louis, Keokuk & Northwestern Railroad Company v. Clark et al., Appellants

Supreme Court of Missouri

December 23, 1893

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Reversed and remanded.

Lee & Ellis and Rowell & Ferris, for appellants.

(1) The application for the payment of the amount of award to Clark and others was made after the judgment in the circuit court and after appeal by the railroad company therefrom, and therefore, could not have been included in said judgment and appeal. In such cases appeals will lie from orders after judgment. St. Louis v. Brooks, 107 Mo. 383. But the amendatory act of 1891 has removed all doubt from this question. Acts of 1891, page 70. (2) Clark had the same right after judgment to demand from the circuit court the amount of the award that he had before judgment. His right to receive and use this award of $ 87,510, until the final settlement of his rights, is a right which antedates the judgment, was not on trial, and which was in no sense derived from the judgment, but came direct to Clark from the constitution itself at the time when the railroad company accepted the beneficial results of the award by taking exclusive possession of the land condemned. Section 21, Bill of Rights Mo. Const.; Railroad v. Fowler, 20 S.W. 1069. (3) A judgment appealed from and superseded by an appeal bond is not a finality, not res adjudicata, and no bar to such rights as depend alone upon the final determination of the issues in the suit. State ex rel. v. Dillon, 96 Mo. 56; Cohn v. Lehman, 93 Mo. 574; Ketchum v. Thatcher, 12 Mo.App. 185; Murphy v. DeFrance, 101 Mo. 151; Chouteau v. Rowse, 90 Mo. 191; Day v. DeYonge, 66 Mich. 550; Byrne v. Prather, 14 La. Ann. 653; Glenn v. Brush, 3 Colo. 26; Campbell v. Howard, 5 Mass. 376; Sharon v. Hill, 26 F. 337; Woodbury v. Bowman, 13 Cal. 634. (4) The opinion of this court in the Fowler case is a correct exposition and application of the constitutional provisions regulating eminent domain. Railroad v. Fowler, 20 S.W. 1069. The language used in section 21 of our bill of rights is clear, unambiguous and needs no interpretation. Smith Commentaries, sec. 478. But if there be room for two constructions, the one most favorable to the land owner should be adopted. Cooley's Const. Lim. [6 Ed.], p. 651; Lewis on Eminent Domain, sec. 341, par. 1, 6; Mitchell v. Railroad, 68 Ill. 289. The words "paid into court for the owner," mean for the owner's use, and not merely deposited for his security. Redman v. Railroad, 33 N.J.Eq. 165; Johnson v. Railroad, 45 N.J.Eq. 454; Company v. Burket, 26 Ind. 53-57; Graham v. Railroad, 27 Ind. 260; Meily v. Zurmehly, 20 Ohio St. 627; Wagner v. Railroad, 38 Ohio St. 32; Kaime v. Railroad, 30 Minn. 423; Railroad v. Grady, 6 Ky. 144. Carisco v. Calvin, 17 S.W. 854; Railroad v. Piel, 87 Ky. 267; Pearson v. Johnson, 54 Miss. 259; Chambers v. Railroad, 10 Am. and Eng. R. R. Cases, 376; Oliver v. Railroad, 83 Ga. 257; Railroad v. Jones, 68 Ala. 48; Faust v. Huntsville, 83 Ala. 279.

Geo. A. Madill and John G. Chandler, for respondent.

(1) The circuit court having rendered final judgment, disposing of all the funds in court, in the June term, 1892, from which appeal was taken, with supersedeas to the October term, 1892, of the supreme court, it was not in the power of the circuit court at December term, 1892, to order the fund paid over to appellants, defendants below. 1 R. S. 1889, secs. 2206, 2304, 2307; Sharon v. Hill, 26 F. 337; Hills v. Sherwood, 33 Cal. 478; U. S. v. The Peggy, 1 Cranch, 103; Gilmore v. Ins. Co., 2 P. 382; State ex rel. v. Sutterfield, 54 Mo. 394; Freeman on Judgments [4 Ed.], secs. 16, 21; Rogers v. Gosnell, 51 Mo. 468; Smith v. Mayor, 1 Gray, 468; 1 Tidd's Practice [4 Ed.], 530; Bank v. Wheeler, 28 Conn. 433; Bigelow on Estoppel [5 Ed.], 52; Meyer v. Campbell, 12 Mo. 603; Christy v. Flanagan, 87 Mo. 670; State ex rel. v. Dillon, 96 Mo. 56; Foster's Adm'r v. Rucker's Ex'r, 26 Mo. 494; Ladd v. Cousins, 35 Mo. 513; Stewart v. Stringer, 41 Mo. 400. (2) The authorities cited under appellant's point 2 only hold that the judgment appealed from can not be used in support of a plea of res adjudicata, or as the basis of a collateral action. They have no bearing on the powers of the court, by which the judgment was rendered. The argument of appellants is founded on a fallacy, an ambiguity in the term final judgment, which may mean final as to the rights of the parties, or final as to the court rendering it. Sharon v. Hill, 26 F. 337, 389; Hills v. Sherwood, 33 Cal. 478; U. S. v. The Peggy, 1 Cranch, 103; Gilmore v. Ins. Co., 2 P. 332; State ex rel. v. Sutterfield, 54 Mo. 394; Freeman on Judgments [4 Ed.], sec. 21. (3) After an appeal allowed, the court which rendered the judgment appealed from, has no jurisdiction. Freeman on Judgments [4 Ed.], sec. 16; Rogers v. Gosnell, 51 Mo. 468; Meyer v. Campbell, 12 Mo. 603; Foster's Adm'r v. Rucker's Ex'r, 26 Mo. 494; Ladd v. Cousins, 35 Mo. 513; Stewart v. Stringer, 41 Mo. 400; Smith v. Mayor, 1 Gray, 72. (4) Railroad v. Fowler is neither a precedent nor a rule for decision of the case at bar. Const., art. 2, sec. 21; art. 12, sec. 4; 3 Blackstone's Com., 23; Coke on Litt. 58a; Hobart v. Hobart, 45 Iowa 501; 4 Am. and Eng. Encyclopedia of Law, 447, and citations; Railroad v. Brick Co., 85 Mo. 307; Cohens v. Virginia, 6 Wheat. (U.S.), 399; Wells on Res Adjudicata and Stare Decisis, sec. 583. (5) The opinion expressed arguendo in the Fowler case, outside the facts in the record, can not control the judgment in any subsequent suit. Cohens v. Virginia, 6 Wheat. (U.S.) 399; Wells on Res Adjudicata and Stare Decisis, sec. 583. (6) The rule stare decisis requires that in the case at bar the opinion in the Fowler case be disregarded and the decision in the Brick Co. case followed. Bates v. Relyea, 23 Wend. 340; 1 Kent's Com. 475; Reed v. Ownby, 44 Mo. 204; State ex rel. v. Sutterfield, 54 Mo. 397; Smith v. Clark County, 54 Mo. 58; Broom's Legal Maxims, 140.

Macfarlane J. Sherwood, J., dissents. Barclay, J., absent.

OPINION

In Banc

Macfarlane, J.

This was a proceeding in condemnation in the circuit court, City of St. Louis, Missouri, in behalf of the plaintiff, a railroad company, against the defendants, Clark and others, as the owners of certain land described in the petition. Commissioners were duly appointed, who reported and awarded to the defendants as compensation the sum of $ 87,510, which sum of money the railroad company paid into court and thereupon took possession of the land condemned and has retained the same ever since, using it for the purposes of its railroad.

Thereafter exceptions were filed to such report by both plaintiffs and defendants. A reassessment of damages was had before the court, by a jury, and a verdict was returned assessing the compensation to which the defendants were entitled, at the sum of $ 72,018. The court entered up a judgment on said verdict in favor of defendants and against the plaintiff for the amount of the verdict together with six per cent. interest thereon from the date of condemnation until the verdict, amounting in all to $ 74,418.78. The judgment concluded as follows:

"And it is further considered, adjudged and ordered by the court that out of said fund paid into court by said railroad company, as aforesaid, there be paid to said Clark, Rowse, and the Connecticut Mutual Life Insurance Company, the sum of $ 74,418.78, in payment and satisfaction of said damages and said interest on same, and that the balance of said fund and the accumulations thereof, be paid to said railroad company; and it is further ordered that the costs of this proceeding, as to said appellants, occasioned by the litigation subsequent to the filing and copying of the report of commissioners herein, be paid one-half by each of said parties, plaintiff and defendant, respectively."

The railroad company filed its motion for a new trial in the circuit court which was overruled, and from such judgment the railroad company took an appeal, giving a proper supersedeas bond in support thereof, which appeal is now pending in this court.

Afterwards the defendants filed their motion and application in the circuit court for an order directing the payment to them of said sum of $ 87,510, being the amount of the award of the commissioners. On the twenty-fourth day of January, 1893, this motion and application of defendants was overruled. They thereupon filed their motion for a rehearing, which being overruled, they appealed to this court. A motion was filed in this court to dismiss the appeal and thereupon the cause was advanced and the motion and appeal upon its merits were heard together.

I. An act of the general assembly of the state, approved in 1891 (Acts of 1891, p. 70), gives in express terms, the right of appeal "from any special order after final judgment in the cause." The appeal of defendants after final judgment was properly allowed under this statute, unless the award of the commissioners was merged in or vacated by the final judgment of the court upon the verdict of the jury.

II. The question then, is, whether defendants had the right to demand the amount of the award of the commissioners, notwithstanding the judgment of the court directing the disposition of the fund so awarded and deposited in court. A determination of the question necessarily involves a construction of the constitution and statutes of the state bearing on the exercise of the right of eminent domain by a railroad corporation.

Section 21 of the bill of rights declares that "private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less...