Butler County Railroad Company v. Barron

• Decision Date: 28 July 1913
• Parties: BUTLER COUNTY RAILROAD COMPANY, a Corporation, plaintiff, v. W. N. BARRON, Defendant--Respondent, JOSEPH MURPHY and SARAH MURPHY, Defendants--Appellants
• Court: Missouri Court of Appeals

158 S.W. 872

173 Mo.App. 365

BUTLER COUNTY RAILROAD COMPANY, a Corporation, plaintiff, v. W. N. BARRON, Defendant--Respondent, JOSEPH MURPHY and SARAH MURPHY, Defendants--Appellants

Court of Appeals of Missouri, Springfield

July 28, 1913

Appeal from Butler County Circuit Court.--Hon. J. C. Sheppard Judge.

Judgment affirmed.

S. L Clark and L. M. Henson for appellants.

(1) On a bill of interpleader there arises two litigations and there must be a judgment in favor of plaintiff before an issue can be framed between the claimants of the fund in controversy. Duke, Lennon & Co. v. Duke & Woods, 93 Mo.App. 244. (2) The judgment on the interpleas shows on its face that the fund in controversy had not been paid into court at the time the judgment was rendered, therefore the court had no jurisdiction of the subject-matter; the judgment should be reversed and the parties placed in statu quo. Arn v Arn, 81 Mo.App. 140; Boyer v. Hamilton, 21 Mo. Mo.App. 525. The plaintiff in a bill of interpleader should be disinterested and indifferent as to the claims of defendants. Pemeroy's Equity Jurisprudence (3 Ed.), sec. 1325.

Louis F. Dinning for respondent.

(1) There is no question involved in this appeal, except as to the ownership of the damages awarded by the commissioners for the right of way. Cox v. Barker, 150 Mo. 424; Price v. Blankenship, 144 Mo. 203; Hilton v. City of St. Louis, 99 Mo. 199, 129 Mo. 389; Corrigan v. Morris, 97 Mo. 174; Bailey v. Winn, 113 Mo. 155; Bradley v. Ins. Co., 147 Mo. 634. (2) No bill of exceptions was filed in this case, no objections or exceptions were filed by appellants to the commissioners' report, hence the title to the right of way has vested in the railroad company. (3) Sec. 2362, R. S. 1909, provides upon failure to pay the assessment aforesaid, the court may upon motion and notice by the party entitled to such damages, enforce the payment for the same by execution. Appellants had no right to an execution for the money in question because the ownership thereof was in dispute, nor did they have any right to file the motion asking the court to order the Railroad Co. to pay damages assessed by the commissioners to the clerk of the court. (4) Appellants voluntarily filed their answer or interplea and went to trial. They and respondent Barron submitted their respective claims to this fund and introduced their evidence and the court determined and adjudged that said fund belonged to respondent Barron.

OPINION

STURGIS, J.

This is a suit for condemnation of land for a railroad right of way over a tract of land in Butler county, Missouri, under the provisions of section 3067, et seq., Revised Statutes 1909. The defendants are rival claimants to the ownership of this land and of the damages assessed for the right of way over the same. The original petition for condemnation made defendant-respondent, Barron, and defendant-appellant, Joseph Murphy, and one Horton defendants, alleging that they jointly claimed to own said land. During the course of procedure herein and prior to the appointment of commissioners to assess damages, the defendant-appellant, Sarah Murphy, was with her consent and entry of appearance, made a defendant as claiming an interest in the land. The commissioners made report assessing $ 100 as "damages to the owners, to-wit, William N. Barron, M. C. Horton or Joseph Murphy, the true owner thereof to be declared and decreed by the court upon the trial of this cause, for said strip taken." This occured at the September term, 1911, of said court. No exceptions were taken or filed to the report of the commissioners and such report has presumably been confirmed. At the same term of court defendants, Barron and Horton, filed a motion in the nature of an interplea alleging that they are the sole owners of the legal and equitable title to the land in question, and that appellants Joseph and Sarah Murphy have no right, title or interest in the same, and asking the court to order the payment to them of the damages assessed, to-wit, $ 100, for the right of way over the land in question. This motion or interplea seems to have been continued to the next term of court. At the January term, 1912, of said court, the appellant Joseph Murphy filed a motion for an order requiring the plaintiff to pay into court the amount of such award of damages; which motion the court overruled and gave such defendant leave to answer or plead at the next term of court. No objection was made or exception taken to the action of the court in overruling this motion. At the next March term, 1912, of that court, the appellants Joseph and Sarah Murphy filed their motion in the nature of an interplea claiming to be the owners in fee of the land in question and to be entitled to the damages assessed for the railroad right of way over the same and asking a judgment for such $ 100. The court heard these motions or interpleas together, without objection of any kind, and made a finding that W. N. Barron is the owner of said land and that appellants Joseph and Sarah Murphy have no right, title or interest in such land or the damages assessed, and ordered that the damages assessed be paid to W. N. Barron. It is from this order that defendants Joseph and Sarah Murphy have appealed to this court.

No bill of exceptions was filed and we have no means of knowing what evidence was heard by the court on these interpleas nor have we any means of determining the merits of the respective titles of the defendants. The court seemed to have pursued the proper course in making or permitting all the parties claiming any interest in this land to be made parties defendant. The commissioners in assessing the damages to this tract of land properly assessed the same in a lump sum leaving it to the court to determine the ownership and apportion the damages awarded among the rival defendants. Chicago Railway Co. v. Elliott, 117 Mo. 549, 553, 24 S.W. 53, where the court said: "It (the plaintiff railroad) is only concerned in the adjustment of the...