State ex rel. State Highway Commission v. Hammel

• Decision Date: 09 April 1956
• Docket Number: 44862,Nos. 44861,No. 1,s. 44861,1
• Citation: 290 S.W.2d 113
• Parties: STATE of Missouri ex rel STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. Arthur W. HAMMEL et al., Defendants, Emil Waibel, Defendant-Appellant, Erwin F. Vetter, Defendant-Appellant
• Court: Missouri Supreme Court

Page 113

290 S.W.2d 113

STATE of Missouri ex rel STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. Arthur W. HAMMEL et al., Defendants Emil Waibel, Defendant-Appellant Erwin F. Vetter, Defendant-Appellant.

Nos. 44861, 44862.

Supreme Court of Missouri, Division No. 1.

April 9, 1956 Opinion Modified on Court's Own Motion May 14, 1956.

Erwin F. Vetter, E. Gary Davidson, Clayton, for defendants-appellants.

Robert L. Hyder, Bruce A. Ring, Jefferson City, for respondent.

HOLMAN, Commissioner.

In this condemnation proceeding plaintiff sought to condemn a right of way through various tracts of land situated in St. Louis County, Missouri, for a state highway designated as new Route 40 and referred to as the Mark Twain Expressway. According to the pleadings it appears that the right of direct access to said highway was to be limited as indicated on the plans filed. It is alleged that defendant Emil Waibel is the owner of one of the tracts involved and that defendant Erwin F. Vetter has an interest in said tract as trustee in a deed of trust conveying the same. Defendant Waibel filed an 'Answer and Counter-Claim or Cross-Bill' in which he sought specific performance of an alleged written contract (which plaintiff is alleged to have repudiated) wherein said defendant agreed to convey the said right of way to plaintiff without compensation and plaintiff agreed to construct certain access service roads and other improvements contemplated to make the remainder of said tract more readily accessible.

As will hereafter more fully appear the court appointed commissioners and sustained plaintiff's motion to dismiss the counterclaim. The motion of Waibel to vacate these orders having been overruled the defendants have separately appealed. The appeals were consolidated here and briefed, argued and submitted as one appeal. We have appellate jurisdiction since the equitable counterclaim sought specific performance of a contract to convey land and hence title to real estate in involved. State ex rel. Place v. Bland, 353 Mo. 639, 183 S.W.2d 878. Also, certain constitutional questions were raised in the counterclaim and have been briefed in this court. Article V. Section 3, Constitution of Missouri, 1945, V.A.M.S.

The transcript discloses a somewhat confused state of the record and numerous orders nunc pro tunc seeking to correct and clarify same. However, we see nothing in this situation affecting the basic issues here presented. We will therefore attempt to relate such of the proceedings in the trial court as appear necessary to an understanding of the issues to be determined.

On September 28, 1954, plaintiff's petition was presented, ordered filed, and the court set October 29 for a hearing on the petition and for appointment of commissioners. The answer and counterclaim of defendant Waibel was filed on October 28. On the day set for the hearing plaintiff filed its motion to dismiss said counterclaim on the ground that it failed to state a claim upon which relief could be granted and the cause was then continued until November 5. Defendant Vetter, on November 5, filed three motions relating to plaintiff's petition, (1) motion to dismiss, (2) motion to make more definite and certain, and (3) motion to strike. On that date these three motions, and plaintiff's motion to dismiss the counterclaim, were argued and taken under advisement. Thereafter, on the same date, the record indicates that plaintiff's evidence in support of its petition was heard, 'subject to the motions' aforesaid. On November 15, 1954, the court made an order which, as subsequently corrected by nunc pro tunc orders, provided that (1) the three motions of Vetter were overruled, (2) plaintiff's motion to dismiss the counterclaim of defendant Waibel be sustained, and (3) upon consideration of the evidence in support of plaintiff's petition, certain named persons were appointed as commissioners. On November 22, defendant Waibel filed his motion to vacate the order oppointing commissioners upon the ground, in effect, that plaintiff had already agreed with said defendant on the compensation for said right of way and had actually obtained same under an agreement between the parties, and hence plaintiff had no legal authority to condemn the same and the court did not acquire jurisdiction to proceed with the casue. This motion appeared to be based on the same general theory as was contained in the counterclaim. The court overruled said motion on February 8, 1955. The brief of defendants discloses that they are attacking the order appointing commissioners and also the order dismissing the counterclaim.

We are met at the outset with plaintiff's motion to dismiss the appeals herein on the ground that no final judgment had been entered in the trial court and hence the appeals were premature. We have concluded that this motion is meritorious and should be sustained.

The right of appeal is purely statutory. Section 511.020 (all statutory references are to RSMo 1949, V.A.M.S.) defines a judgment as 'the final determination of the right of the parties in the action.' The only provision in Section 512.020 that could be applicable to the instant case is that 'any party * * * may take his appeal * * * from any final judgment in the case.' A final, appealable judgment is ordinarily one which disposes of all parties and all issues in the case Bennett v. Wood, Mo.Sup., 239 S.W.2d 325. This means a disposition of all issues raised by all pleadings and not the issues on only one side of the case. For example, a judgment on plaintiff's claim which fails to also dispose of a counterclaim is not final. Bennett v. Wood, supra; McNabb v. Payne, Mo.App., 280 S.W.2d 864.

In the instant case it is clear that there was no final judgment on the issues presented by plaintiff's petition and on the question of damages. It has long been the established rule in this state that an order appointing commissioners is interlocutory in its character and an appeal will not lie therefrom. St. Joseph Terminal Ry. Co. v. Hannibal & St. J. Ry. Co., 94 Mo. 535, 6 S.W. 691; State ex rel. Missouri Pac. Ry. Co. v. Edwards, 104 Mo. 125, 16 S.W. 117; State ex rel. Summerson v. Goodrich, 257 Mo. 40, 165 S.W. 707. See aslo, Luxton v. North River Bridge Co., 147 U.S. 337, 13 S.Ct. 356, 37 L.Ed. 194. Even though a defendant may contest the right of the plaintiff to condemn, the judgment in such a case is not final or appealable until after the commissioners file their report and the exceptions thereto, if any, are tried and the amount of damages finally fixed. St. Joseph Terminal Ry. Co. v. Hannibal & St. J. Ry. Co., supra; Caruthersville School Dist. No. 18 v. Latshaw, 360 Mo. 1211, 233 S.W.2d 6. The reasons for such a conclusion are obvious. The order appointing commissioners is no final determination...