City of Sioux Falls v. Naused

• Decision Date: 18 January 1974
• Docket Number: No. 11245,11245
• Citation: 214 N.W.2d 74,88 S.D. 14
• Parties: CITY OF SIOUX FALLS, a municipal corporation under the Laws of the State of South Dakota, Plaintiff, v. Walter H. NAUSED and Marianne D. Naused, Defendants and Respondents, and Sturdevant's L & L Motor Supply, Inc., Defendant, and Sioux Brake and Equipment Company, Inc., Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 74

214 N.W.2d 74

88 S.D. 14

CITY OF SIOUX FALLS, a municipal corporation under the Laws of the State of South Dakota, Plaintiff, v. Walter H. NAUSED and Marianne D. Naused, Defendants and Respondents and Sturdevant's L & L Motor Supply, Inc., Defendant and Sioux Brake and Equipment Company, Inc., Defendant and Appellant.

No. 11245.

Supreme Court of South Dakota.

Jan. 18, 1974.

Rehearing Granted Feb. 11, 1974.

Willy, Pruitt, Matthews & Jorgensen, Roy E. Willy and Gene E. Pruitt, Sioux Falls, for defendants and respondents.

Blaine Simons, Sioux Falls, for defendant and appellant.

DOYLE, Justice.

This appeal is from a judgment in a condemnation proceeding. The City of Sioux Falls, South Dakota (City), condemned the property owned by Walter H. Naused and Marianne D. Naused (Nauseds), consisting of Lots 1, 2, 3 and 4 of Detlie and Franberg's Subdivision, Sioux Falls, Minnehaha County, South Dakota. Lots 1, 2 and 3 had originally been leased to Morgan Wheel & Equipment Company of Omaha, Nebraska, for a period of ten years at a rental of $225 a month. This lease was subsequently assigned to Sioux Brake and Equipment Co. Inc. (Sioux Brake) and, at the time judgment was entered, the unexpired term of the lease was four years and four months. The defendant, Sturdevant's L & L Motor Supply, Inc., leased Lot 4 of said property, but made no appearance because its lease had expired at the time of trial.

The trial court entered judgment for the Nauseds in the amount of $70,000 for the property and $4,982 for the immovable fixtures. The trial court held that the value of the lease held by Sioux Brake was equal to and no more than the monthly rental of $225, and that no damage accrued to them by virtue of the taking in the condemnation proceeding.

Sioux Brake appeals from this judgment claiming that the trial court erred in arriving at its decision regarding the value of the lease.

After the judgment was entered, the City, Nauseds and Sioux Brake entered into a stipulation in order to expedite the case. In this stipulation the parties agreed title and possession of the property would vest in the City and the Nauseds would receive the sum of $70,000 for delivery of warranty deed to the property. This was all to be accomplished on or before August 22, 1972.

It is provision V of this stipulation that concerns us in the present appeal. This provision states:

'It is expressly agreed that the above sum which is being paid is without prejudice to the rights of the defendants to any additional amounts finally adjudged to be just compensation, and is further without prejudice to the right of plaintiff to recover from said defendants any amount paid to them in excess of the amount finally adjudged to be just compensation if this shall be the case; and the above named defendants Walter H. Naused and Marianne D. Naused agree that they will repay all, or any part, of the money paid under the terms of this Stipulation, if it should later be found that others, including the plaintiff or defendant Sioux Brake and Equipment, Inc., were entitled thereto.'

In the appeal before this court, concerning the value of the leasehold interest of Sioux Brake, appellant failed to join the City in this action by failure to properly serve a notice of appeal on said City. The appellant, Sioux Brake, served and appealed only as to the Nauseds, the respondents herein.

SDCL 15--26--3 provides as follows:

'Notice of appeal served on adverse party and filed with clerk--Contents.--An appeal must be taken by serving on the adverse party and filing with the clerk of the court in which the judgment or order appealed from is entered a notice, in writing, signed by the appellant or his attorney, stating the appeal from the same and whether the appeal is from the whole or a part thereof, and if from a part only, specifying the part appealed from.'

Was the City an adverse party within the meaning of this statute? 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. Crouch v. Dakota, W. & M. R.R. Co., 1908, 22 S.D. 263, 117 N.W. 145; Millard v. Baker, 1957, 76 S.D. 529, 81 N.W.2d 892; Morrell Livestock Company v. Stockman's Commission Co., 1957, 77 S.D. 114, 86 N.W.2d 533.

The Nauseds urge that a reversal or modification of the judgment relating to the leasehold interest of Sioux Brake would adversely affect the City because if the judgment were reversed and the market value of the leasehold interest were determined to be greater than the rental figure of $225 a month, then the award made by the trial court to the Nauseds would be affected thereby, since the trial court viewed the rental figure of $225 a month as the basis for that portion of the award made to said respondents.

It is true as...