City of Fargo Urban Renewal Agency v. Fargo Union Mission

• Decision Date: 17 August 1967
• Docket Number: No. 8416,8416
• Parties: CITY OF FARGO URBAN RENEWAL AGENCY, a public body corporate and politic, Plaintiff and Respondent, v. FARGO UNION MISSION, Defendant and Appellant, and City of Fargo, a municipal corporation, Defendant and Respondent, and Cass County, North Dakota, a public corporation, State of North Dakota, Lloyd Omdahl, the North Dakota State Tax Commissioner, Defendants.
• Court: North Dakota Supreme Court

Page 465

152 N.W.2d 465

CITY OF FARGO URBAN RENEWAL AGENCY, a public body corporate and politic, Plaintiff and Respondent, v. FARGO UNION MISSION, Defendant and Appellant, and City of Fargo, a municipal corporation, Defendant and Respondent,

and

Cass County, North Dakota, a public corporation, State of

North Dakota, Lloyd Omdahl, the North Dakota State

Tax Commissioner, Defendants.

No. 8416.

Supreme Court of North Dakota.

Aug. 17, 1967.

Syllabus by the Court

Where the landowner-condemnee in a condemnation action accepted a check for the full amount awarded it in the final order of condemnation, although this was an amount less than the jury verdict (the order having required a payment to the City of the amount of the uncertified and unreturned special assessments levied against the property), and also accepted a check for attorney's fees and costs, no judgment having been entered prior to the entry of the order, as contemplated by § 32--15--29, N.D.C.C., the acceptance of the checks constituted a settlement which deprived the landowner-condemnee of its right to appeal from the final order of condemnation, notwithstanding the fact that the landowner-condemnee conveyed the property to the condemnor, covenanting that it was free from all encumbrances except installments of special assessments or assessments for special improvements which had not been certified to the county auditor for collection.

Nilles, Oehlert, Hansen, Selbo & Magill, Fargo, for defendant and appellant Fargo Union Mission.

Wattam, Vogel, Vogel, Bright & Peterson, Fargo, for plaintiff and respondent.

Conmy, Conmy & Feste, Fargo, for defendant and respondent City of fargo.

ERICKSTAD, Judge.

On January 26, 1966, the City of Fargo Urban Renewal Agency (hereafter called the Agency) commenced a condemnation proceeding to acquire property owned by the Fargo Union Mission (hereafter called the Mission).

The City of Fargo was also named as a defendant. In its answer it asserted that it had an interest and lien in the property to be condemned, in that certain special improvements to the property had been made and special assessments had been levied against it, and that the unpaid, uncertified, and unreturned special assessments levied against the property were in the amount of.$2,444.40. It asked that any judgment entered protect the city's interest and lien and provide for the payment to it of that sum plus any taxes certified to the county auditor in 1965 or prior years which had not been paid.

A jury verdict was returned which found the reasonable and fair market value of the property condemned to be $122,750. No judgment was entered thereon, but the court executed a document entitled 'Final Order of Condemnation' dated June 20, 1966. This order stated that a verdict for $122,750 had been returned and that the Agency had deposited with the court a check in that amount.

The order required that the Mission furnish the Agency with an abstract of title to the condemned property and convey it by warranty deed free and clear of all encumbrances, including taxes and special assessments for the years previous to 1966, and the uncertified and unreturned special assessments, before the clerk of the court should distribute to the landowner the money on deposit with the court.

The record discloses that, notwithstanding these provisions, the Agency on June 17, 1966, issued a check for $119,421.46 payable to the clerk of the court, the Mission, and the Metropolitan Savings & Loan Association, a check for $2,499.37 (the amount of the uncertified and unreturned special assessments) payable to the City of Fargo, a check for $693.87 payable to the Cass County Treasurer, and a check for $135.30 payable to the U.S. Postmaster at Fargo, the checks totalling $122,750. In exchange for the check for $119,421.46 the Mission executed and delivered a warranty deed dated June 13, 1966, whereby it conveyed the condemned property to the Agency and covenanted that the property was free from all encumbrances except installments of special assessments or assessments for special improvements which had not been certified to the county auditor for collection.

On August 16, 1966, after accepting the check for $119,421.46, under the conditions heretofore stated, and a check dated June 21, 1966, for $13,826.24 ($12,562.50 for attorney's fees and $1,263.74 for costs) made payable to the Mission and its attorney, the Mission filed its notice of appeal, in which it stated that it was appealing 'from the final order of condemnation dated June 20, 1966, deducting the unpaid balance of special assessments from the...