Chicago, Santa Fe & California Railway Company v. Eubanks
| Decision Date | 07 November 1895 |
| Citation | 32 S.W. 658,130 Mo. 270 |
| Parties | Chicago, Santa Fe & California Railway Company, Appellant, v. Eubanks |
| Court | Missouri Supreme Court |
Appeal from Chariton Circuit Court. -- Hon. G. D. Burgess, Judge.
Reversed and remanded.
Gardiner Lathrop, I. H. Kinley, and S.W. Moore for appellant.
The exact question here presented was decided adversely to the respondent by the supreme court of Missouri in Railroad v. Fowler, 113 Mo. 458. It was there held that the land owner is not entitled to interest on the award, since he has the right to withdraw it at any time.
Syd. B Burks, Thos. Shackelford, and Crawley & Son for respondent.
Appellant having failed to file such an abstract of the record as is required by rule 15 of this court, the appeal should be dismissed. School Dist. v. Clark (Oct. term, 1892 of this court); Hansman v. Hope, 20 Mo.App. 193.
This is a proceeding under the statute for the condemnation of a right of way through the lands of defendant in Chariton county, for the use of plaintiff railway company.
After the usual formal preliminaries, commissioners filed their report awarding to defendant the sum of $ 1,600 as his damages for the appropriation. Plaintiff then paid into court for the use of defendant the amount of the award, filed its exceptions to the report of the commissioners, took possession of the condemned strip of land and began the construction of its road thereon; and when the case first came on for hearing in the circuit court, demanded a jury, which being denied by the court, an appeal was prosecuted to this court for the determination of that question solely.
The case was reversed, and at the second trial thereof before a jury, plaintiff, at the close of its testimony, withdrew its exceptions to the commissioners' report; whereupon the court, at the request of defendant and against the objections of plaintiff, approved the report of the commissioners and directed a judgment against plaintiff, the appellant herein, for the sum of $ 2,113.60, the original award of the commissioners with interest thereon at six per cent per annum from date of the appropriation to the date of trial.
After an unsuccessful motion for a new trial, on the alleged grounds of error of the court in the allowance of interest upon the original award, this appeal was prosecuted to the Kansas City court of appeals and from that court ordered transferred to this court on the grounds that "a proceeding by a railroad company to condemn land for its right of way is a suit involving title to real estate within the meaning of section 12, article 6, of the constitution."
The sole question presented is, whether or not defendant is entitled to interest upon the award of the commissioners. If he is entitled to interest, then the judgment must be sustained; if not, then the judgment must be reversed.
The identical question involved in this appeal has frequently been before this court for review, and with the single exception of the case of St. Louis, etc., Co. v. Evans & Howard Brick Co., 85 Mo. 307, which seems to support the contention of respondent, this court has decided that interest can not be allowed on the award, as the land owner has the right to withdraw and use the money pending the proceedings for the reassessment of the damages on his exceptions.
The plaintiff complied with all the requirements of the constitution and statutes in such cases provided, and paid into court for the use of defendant $ 1,600, the full amount of the award of damages to defendant by the commissioners and, being placed with the court for the use of defendant, he will not be permitted to have...
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