Martin v. City of St. Louis

• Decision Date: 25 May 1897
• Citation: 139 Mo. 246,41 S.W. 231
• Parties: MARTIN v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

41 S.W. 231

139 Mo. 246

MARTIN v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 2.

May 25, 1897.

CONDEMNATION PROCEEDINGS — INTEREST — ESTOPPEL.

1. Receipt by landowner of principal sum of award for land condemned for street, under agreement with the city that such acceptance should not prejudice his right to interest claimed, does not estop him to sue for the interest.

2. Interest, which Rev. St. 1889, § 5974, provides "shall be allowed on all money due on any judgment or order of any court from the day of rendering the same," should in condemnation proceedings, under the charter of the city of St. Louis (Rev. St. 1889, pp. 2119-2122), be allowed from entry of final order; this not being entered till the city has elected to pay the amount awarded, and the right to take the land on the payment of the money being thereby given the city, and the city having the power to make appropriation therefor at once, and, if the ownership of the property is in dispute, to pay the money into court.

Appeal from St. Louis circuit court.

Action by Joseph E. Martin, executor of Edward Martin, deceased, against the city of St. Louis. Judgment for plaintiff. Defendant appeals. Affirmed.

W. C. Marshall, for appellant. Jas. P. Maginn, for appellee.

GANTT, P. J.

This is an appeal by the city of St. Louis from a judgment of the circuit court of St. Louis in favor of Edward Martin, for $5,743.08, against said city, on May 29, 1894. Pending the appeal in this court, Mr. Edward Martin died, and, upon proper proceedings, the cause has been revived in the name of his executor. The judgment was rendered upon demurrer. The facts stand admitted, and are as follows:

The city of St. Louis, by its ordinance No. 15.439, approved February 14, 1890, established Tenth street, in said city, as a public highway, 60 feet wide, from Washington avenue to Christy avenue, the center line of said street to run 301 feet east of and parallel with Eleventh street, and authorized the city counselor to cause said Tenth street to be opened according to law. At said date, Edward Martin was the owner in fee of the said strip of ground, fronting 60 feet on Washington avenue, and running northwardly to Christy avenue, a depth of 225 feet, which ground, together with other ground adjoining it on the east and west (all vacant and unimproved), had been previously allotted to plaintiff by a final decree of the circuit court of the city of St. Louis, in partition proceedings, between plaintiff and Charles Green and others. From this decree an appeal was pending, taken by said Green, in the supreme court of Missouri, which appeal was dismissed by him on the 20th day of June, 1892, a bond having been given on said appeal in words and figures as follows, to wit:

"Know all men by these presents, that we, Charles Green, as principal, and August Gehner and John M. Sellers, as sureties, are held and firmly bound unto Edward Martin in the sum of fifteen thousand dollars, for the payment of which well and truly to be made we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated at St. Louis, this 6th day of December, A. D. 1889.

"The condition of the above obligation is such that whereas, Charles Green has appealed from the judgment in partition rendered against him, and in favor of Edward Martin, in the circuit court, city of St. Louis, and for one-half the costs taxable in said cause, being the sum of four thousand five hundred dollars, together with costs: Now, if said appellant shall prosecute his appeal, with due diligence, to a decision in the supreme court of the state of Missouri, and shall perform such judgment as shall be given by the said supreme court, or such as the said supreme court may direct the circuit court, city of St. Louis, to give, and if the judgment of said circuit court, or any part thereof, be affirmed, and said appellant shall comply with and perform the same, so far as it may be affirmed, and pay all damages and costs which may be awarded against him by the said supreme court, then this obligation to be void; otherwise, to remain in full force and effect. Charles Green. [Seal.] August Gehner. [Seal.] John M. Sellers. [Seal.]

"Approved in open court, this 6th day of December, 1889. Attest: Philip H. Zepp, Clerk."

Proceedings were begun by the city of St. Louis in the said circuit court on May 12, 1890, against Mr. Martin and said Green and others, pursuant to said ordinance, being cause No. 82,220 of said court, for the condemnation of said strip of ground, for the public use, as a public highway. Commissioners were duly appointed by said court, to assess the damages sustained by the owners of said strip, by the said condemnation thereof; and on April 4, 1891, they filed their report as commissioners on said cause in said court, and assessed said damages at the sum of $120,000; and thereupon the city of St. Louis was granted time until May 30, 1891, to report the action of the said commissioners to the municipal assembly for its approval or rejection, as required by law. On May 5, 1891, the said commissioners' report was, by resolution of the said assembly, approved, and its certificate of approval was filed in said cause on May 29, 1891; and thereupon a final judgment was entered by said court, vesting in the city of St. Louis the title to said strip for use as such public highway on condition, however, that said city should first pay over to the owners of said strip the amount of damages awarded by said commissioners, to wit, the sum of $120,000, which said final judgment is in words and figures as follows, to wit:

"April Term, 1891. Friday, May 29th, 1891. The City of St. Louis v. Edward Martin, Charles Green, Thomas A. Simpson, Trustee for James P. Maguire, and Charles J. Maguire, Trustee for Joseph L. Mullery. 82,220. Now, at this day, it appearing to the court that more than ten days have elapsed since the filing of this report of the commissioners in this cause, and that no exceptions thereto have been made, filed, or taken, and that said report has been duly reported to the municipal assembly of the city of St. Louis, for its information and approval, and that the same has been duly approved by the said assembly, and that said street is for public use, it is therefore ordered and adjudged by the court that said report be, and the same is, in all things hereby approved, confirmed, and held as firm and effective forever. And it is further ordered, adjudged, and decreed by the court that the property described in said report, which is contained within the lines as established by Ordinance No. 15,439 of said city of St. Louis be, upon the payment of the damages awarded by said report, vested in the city of St. Louis forever, for the purposes named in the petition in this cause; that the plaintiff pay costs of this proceeding; and that execution may issue therefor. And it is further ordered that the clerk of this court certify to the comptroller of the city of St. Louis a copy of the said report, together with the final action of the court thereon."

Thereafter a certified copy of said report was made and delivered by the clerk of the said circuit court to the comptroller of said city, and forthwith recorded by him, and a copy thereof furnished by him to the municipal assembly of said city on September 20, 1891; and thereafter said assembly, by its ordinance, approved October 23, 1891, appropriated the sum of $120,000 in favor of the owners of said strip, to pay said damages, and directed its auditor to draw his warrant in their favor. Edward Martin, the plaintiff in this action, thereupon demanded payment of the money due him by reason of the said judgment of condemnation; but the city declined to pay same, and avowed its intention to pay the money into court, because the ownership of said property was dependent on the aforesaid final decree in partition, from which an appeal as aforesaid was pending. Mr. Martin at the same time notified the defendant, through its comptroller and city counselor, that he was entitled to interest at 6 per cent. per annum on the award from the date of the judgment of condemnation. The city, however, refused to cause the said money, or any part thereof, to be tendered or paid to the parties entitled thereto, or into court for their use, as provided by its charter and ordinances, but retained the same in its possession until July 11, 1892, about one month subsequent to the dismissal by said Green of the said appeal in the supreme court. Mr. Martin, immediately upon the dismissal of the said appeal, to wit, on the 25th day of June, 1892, again demanded from the city, through its proper officers, the payment of the said award and interest thereon, and was put off until the said officers could satisfy themselves of the dismissal of said appeal. On or about July 8th, Mr. Martin again presented himself to the said officers, and requested payment of said award and interest. The comptroller, acting under the advice of the city counselor, to whom the demand was referred, declined to pay any interest; and thereupon Mr. Martin proposed that, instead of suing the city for the whole amount, he would take the principal sum of $120,000, without...