State Highway Commission v. Fortune
| Decision Date | 29 July 1958 |
| Docket Number | No. 9683,9683 |
| Parties | The STATE HIGHWAY COMMISSION of the State of South Dakota, on behalf of and in the name of the State of South Dakota, Plaintiff and Appellant, v. R. A. FORTUNE and the Atlantic Refining Company, Defendants and Respondents. The STATE HIGHWAY COMMISSION of the State of South Dakota, on behalf of and in the name of the State of South Dakota, Plaintiff and Appellant, v. Howard FORTUNE, J. B. Ferguson, Gaylord H. Chezum and the Atlantic Refining Company, Defendants and Respondents. |
| Court | South Dakota Supreme Court |
Gunderson, Farrar & Carrell, Rapid City, Phil Saunders, Atty. Gen., Walter Mueller and William H. Coacher, Asst. Atty. Gen., for plaintiff and appellant.
Bangs, McCullen & Butler, H. F. Fellows, Rapid City, for defendants and respondents R. A. Fortune and Howard Fortune.
The State Highway Commission of the State of South Dakota on behalf of and in the name of the State of South Dakota, as plaintiff, brought two separate actions in the exercise of its power of eminent domain to condemn lands in Pennington County for highway purposes for construction of an inter-state highway as a part of the Federal Interstate Highway System. In the one action the named defendants are R. A. Fortune and the Atlantic Refining Company. In the other action the named defendants are Howard Fortune, J. B. Ferguson, Gaylord H. Chezum and the Atlantic Refining Company. Upon stipulation of the plaintiff State, appellant in this Court, and the defendants, R. A. Fortune, and Howard Fortune, respondents, the cases were consolidated for trial in the Circuit Court and have been appealed as one action to this Court.
The defendants, R. A. Fortune and Howard Fortune, were served personally with summons and petition, as appears from proof of service in the record, and appeared in the action. The record does not contain any proof of service of process upon the other defendants and no other defendant appeared either in person or by attorney.
In the petitions the State alleged that the other defendants had an interest in the land involved and that a portion of the land is subject to oil leases held by such other defendants. There was no evidence offered as to the interest of the other defendants but the record does show that the fee title to the various parcels to be taken for highway purposes is either in the defendant R. A. Fortune or the defendant Howard Fortune.
During the presentation of the State's case the following proceedings were had:
'Mr. Knight, Assistant Attorney General: It appears in open court and on the record that in the case of the State versus Howard Fortune that in such case J. B. Ferguson and Gaylord H. Chezum have not answered or appeared in any manner in said case and the plaintiff moves the court for a directed verdict against the aforesaid; and the same is true in the R. A. Fortune case of the Atlantic Refining Company and it not having answered or appeared we make the same motion for directed verdict against said defendant.
'The Court: The motion is granted'.
It does not appear that the jury was advised of such motion and action by the Court except in Court's Instruction No. 1 the Court stated: 'There were some oil lease defendants who are no longer in this case, the only defendants being R. A. Fortune and Howard Fortune.'
After the verdict was rendered awarding the defendants, R. A. Fortune and Howard Fortune, damages in amount of $38,250 for the property taken or damaged, the Court entered a judgment. This judgment contains no finding or recital that the other defendants were served or that they had appeared or were represented in the action unless it can be inferred from the recital 'and it further appearing that all of the other named defendant(s) have defaulted and failed to appear and that said defaulting defendants have no right in said verdict, * * *.' The judgment decreed, 'that the defendants, Atlantic Refining Company, J. B. Ferguson, and Gaylord H Chezum, are not entitled to any of the compensation determined by the jury and herein awarded.'
The defendant, R. A. Fortune and Howard Fortune, moved to dismiss plaintiff's appeal on the ground that the notice of appeal was not served upon the other defendants as required by SDC 33.0703. Recently this Court said: 'The term 'adverse party' includes every party whose interest in the subject matter is adverse to or will be adversely affected by a reversal or modification of the judgment appealed from.' Morrell Livestock Co. v. Stockman's Commission Co., Inc., S.D., 86 N.W.2d 533, 534.
In Illinois Trust & Savings Bank v. Town of Roscoe, 46 S.D. 477, 194 N.W. 649, 651, the Court held 'that the recital in the judgment 'that more than thirty days have elapsed since the service of said summons and complaint' falls far short of a finding that the summons and complaint were served on defendant, and that more than 30 days had elapsed since such service was made on defendant.' But this was on a record that showed affirmatively that proof of service had not been made before judgment was ordered.
Where the record is silent as to jurisdiction the presumption is in favor of the jurisdiction of a court of general jurisdiction to render a judgment. 30A Am. Jur., Judgments, Sec. 43. Here throughout the entire proceedings the Court and the parties participating assumed that the other defendants had been served with process. No issue as to lack of jurisdiction of the other defendants has been raised in this Court. Therefore, for the purposes of this appeal it will be assumed that the lower court acquired jurisdiction over the other defendants.
The motion for a directed verdict was granted without objection by the remaining defendants. The defendants herein caused to be entered and seek the benefit of the judgment which recites that the other defendants 'have no right in said verdict' and decrees that they 'are not entitled to any of the compensation determined by the jury and herein awarded.'
SDC 37.4003 relating to pleadings in condemnation cases is as follows: * * *' By service of the summons and petition all named defendants were brought into the action so that the Court acquired jurisdiction to submit to the jury the issue as to the amount of compensation to be paid for the property to be taken and in which the defendants were alleged to have an interest. As applied to this case, had there been asserted by any defendants claims for the compensation adverse to any other defendants the Court could have required such adverse claimants to interplead, so as to determine fully the rights and interests in such compensation. But the other defendants defaulted and asserted no claims in the compensation adverse to the appearing defendants. Although the petition alleged that the other defendants had an interest, there was no proof thereof, and by granting the motion for a directed verdict against the other defendants without objection by the appearing defendants, the Court in effect determined that they had no interest. Under the circumstances there was no jurisdictional requirement that the other defendants be interpleaded to support the judgment determining the right to the compensation awarded by the jury. All named defendants are bound by the judgment entered.
SDC 37.4011 provides: 'Upon the return of the verdict the Court shall order the same to be recorded, and shall enter such judgment thereon as the nature of the case may require, and that the plaintiff pay to the persons entitled thereto the amount of compensation ascertained by the verdict * * *'. By direction of a verdict against the other defendants and by the judgment the Court determined that the other defendants 'are not entitled to any of the compensation determined by the jury and herein awarded.' Thus any claims of the other defendants to compensation were put in issue and pursuant to such statutes determined by the judgment which decrees that they have no right to compensation.
The judgment in Morrell Livestock Company v. Stockman's Commission Inc., supra, determined that two appearing defendants and a defaulting defendant were liable jointly and severally to the plaintiff. The two appearing defendants appealed. No notice of appeal was served on the defaulting defendant. The Court pointed out that under SDC 47.0106 'A party to a joint, or joint and several, obligation, who satisfies more than his share of the claim against all, may require a proportionate contribution from all the parties joined with him.' It followed that a reversal of the judgment on the appeal by the two defendants would have deprived the defaulting defendant of his right of contribution. He was therefore an adverse party who could be adversely affected by the appeal and was entitled to notice of the Appeal. The Court said:
Because of their default the oil lease defendants cannot complain if the judgment stands. If the judgment falls they will not be adversely affected. They have no interest in the judgment which is adverse to or will be adversely affected by a reversal or modification of the judgment from which the appeal was taken. The motion to dismiss the appeal is denied.
We add that if the other defendants were not served, the judgment purporting to determine they had no interest is...
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