Cassville School Dist v. McArtor

• Decision Date: 31 August 1926
• Docket Number: No. 3771.,3771.
• Citation: 286 S.W. 729
• Parties: CASSVILLE SCHOOL DIST. v. McARTOR et al.
• Court: Missouri Court of Appeals

286 S.W. 729

CASSVILLE SCHOOL DIST. v. McARTOR et al.

No. 3771.

Springfield Court of Appeals. Missouri.

August 31, 1926.

Appeal from Circuit Court, Barry County; Charles L. Henson, Judge.

Condemnation proceedings by the Cassville School District against Charles A. McArtor, Nellie McArtor, Thomas Egger, and another. Defendants Charles A. McArtor and Nellie MeArtor filed an interplea claiming a sum awarded defendant Thomas Egger. Judgment for interpleaders, and defendant Thomas Egger appeals. Reversed and remanded, with directions.

D. H. Kemp, of Cassville, and H. W. Timmonds, of Lamar, for appellant.

BAILEY, J.

The Cassville school district instituted condemnation proceedings in August, 1923, against certain real estate belonging to respondents Charles A. MeArtor and Nellie McArtor, hereinafter referred to as the interpleaders. The appellant Thomas Egger was, at the time, the holder of certain notes secured by deeds of trust covering the land sought to be condemned as well as other land. The defendants in the condemnation proceedings, of which there is no complaint, consisted of the interpleaders and appellant and the Barry County Bank. After due and proper service by summons on each of the defendants commissioners were appointed, who, on September 4, 1923, made their report assessing damages as follows: To Charles A. Mc-Artor and Nellie McArtor, $799; to the Barry County Bank $1; to Thomas Egger, owner and holder of both mortgages, $500. These amounts were deposited with the circuit clerk. Notice of the filing of the report of commissioners was duly served on all defendants about September 8, 1923. On November 12, 1923, defendants Charles A. McArtor and Nellie McArtor filed with the clerk what purported to be exceptions to the finding of the commissioners, but which was, in fact, a claim for the $500 awarded defendant Thomas Egger, the owner of the mortgage note. Thereafter, on March 27, 1924, defendants Charles A. McArtor and Nellie McArtor filed an interplea for the said $500, settting up that Thomas Egger, the defendant to whom the commissioners had allotted the $500, claimed some interest therein adverse to them. Defendant Thomas Egger then filed a motion to strike out the interplea, which motion was by the court overruled. A trial to the court on the merits was had on the interplea June 23, 1924, resulting in a judgment in favor of the interpleaders for the whole sum of $500. From this judgment defendant Thomas Egger has appealed.

No brief or statement on behalf of interpleaders has been filed in this court, and we are unable to determine upon what theory the case was tried. The evidence offered by the interpleaders tended to prove that defendant Egger had consented to a proposition that the $500 in the hands of the clerk should be disposed of on interpleas to be filed by defendants Charles and Nellie MeArtor, interpleaders herein, and the defendant Egger. The McArtors filed their interplea, but defendant Egger failed or refused to do so.

Appellant first assigns as error the action of the court in overruling his motion to strike out the interplea on the theory that such procedure is in contravention of the statutory method of reviewing the report of commissioners. Section 1795, R. S. Mo. 1919, provides that for the purpose of review written exceptions to the report of the commissioners must be filed within ten days after the service of notice. It is contended, therefore, that, since no such written exceptions were filed within the time required, the court was without jurisdiction to hear or determine the interplea. This position cannot be upheld. In the case of Ross v. Gates, 183 Mo. 338, loc. cit. 347, 81 S. W. 1107, 1108, wherein the right to a fund arising out of condemnation proceedings was involved, the court held that it was "within the power of the court to order the fund paid into court and to require all claimants to interplead for it, or to permit any one claimant to maintain an action in the nature of an equitable garnishment against all other claimants." This is unquestionably the logical procedure to be pursued, The petitioners in the condemnation proceeding are not interested in the disposal of the fund which they have paid in upon the report of the commissioners, and the proper disposal of that fund is entirely independent of the condemnation proceedings. No exceptions were filed to the report of the commissioners in this case other than the purported exceptions hereinbefore referred to, filed out of time. No complaint is made that the award of the...