City of St. Louis v. Nelson

• Decision Date: 28 June 1902
• Citation: 69 S.W. 466,169 Mo. 461
• Parties: CITY OF ST. LOUIS, Appellant, v. NELSON et al
• Court: Missouri Supreme Court

69 S.W. 466

169 Mo. 461

CITY OF ST. LOUIS, Appellant, v. NELSON et al

Supreme Court of Missouri, First Division

June 28, 1902

Appeal from St. Louis City Circuit Court. -- Hon. H. D. Wood, Judge.

Affirmed in part and reversed in part.

Chas W. Bates and Alex. Nicholson for appellant.

(1) This proceeding to assess damages and benefits for changing the grade of the streets is but one case, though all parties owning property within the benefit district are parties defendant, and though it affects separately all the parcels of property within such district. R. S. 1899, secs 6109-6114; Railroad v. Erwin, 50 Mo.App. 552. (2) While the jurisdiction of the circuit court in condemnation proceedings is statutory, still, the proceeding is a judicial proceeding, and, in the absence of special statutory directions, the rules applicable to such proceedings govern. Union Depot Co. v. Frederick, 117 Mo. 138. (3) There can be but one final judgment in an action. R. S. 1899, sec 773 (sec. 2213, R. S. 1889); McCord v. McCord, 77 Mo. 166; Ferguson v. Thatcher, 79 Mo. 511; Berkson v. Railroad, 144 Mo. 217; Spalding v. Bank, 78 Mo.App. 374. (4) But one final judgment or decree which shall "terminate the litigation" (respecting the change of grade) is contemplated or authorized in this proceeding. R. S. 1899, secs. 6109-6114; Kansas City v. Bacon, 157 Mo. 470. (5) Plaintiff is materially and injuriously affected in its substantial rights by the error of the court in rendering a final judgment as to a portion of the public improvement while leaving open for future determination or determinations other portions of such improvement.

Leverett Bell for respondent Aetna Iron Works.

The proceedings and judgment below conform in all things with the statute in such cases made and provided, and should be here affirmed. Constitution, sec. 21, art. 2; secs. 6109 to 6114, R. S. 1899; secs. 1815 to 1820, R. S. 1889; Laws 1885, p. 47; Laws 1887, p. 37; Laws 1870, p. 486; sec. 19, art. 6, city charter; Iron Co. v. St. Louis, 138 Mo. 608; 4 Am. and Eng. Ency. Law, pp. 919, 920; State v. Gorham, 37 Me. 451; Daniels v. Athens, 55 Ga. 609; Penn Twp. v. Perry County, 78 Pa. St. 457; Chicago v. Powers, 42 Ill. 169; 2 Am. and Eng. Ency. of Law, p. 513; St. Joseph v. Geiwitz, 148 Mo. 210.

Kehr & Tittmann and J. M. Holmes for respondent St. Louis Brewing Association et al.

(1) In cases like the present, where there is no joint or common interest between the parties, there may be several final judgments. Bobb v. Woodward, 42 Mo. 482; St. Louis v. Lanigan, 97 Mo. 180; Kleiber v. Railroad, 107 Mo. 240; State ex rel. v. Tate, 109 Mo. 270; Fuchs v. St. Louis, 133 Mo. 168; Kansas City v. Bacon, 157 Mo. 470; St. Joseph v. Geiwitz, 148 Mo. 210; Berkson v. Kansas City Cable Co., 144 Mo. 217; St. Louis v. Buss, 159 Mo. 9. (2) No benefits can be assessed in this proceeding against any of the property-owners. The "changed grades" are merely bridge approaches. Turnpike Co. v. Board of Commissioners, 72 Ind. 237; Board of Commissioners v. Gravel Road Co., 87 Ind. 505; Whitcher v. Somerville, 138 Mass. 455; Penn Township v. Perry County, 78 Pa. St. 459; Daniels v. Athens, 55 Ga. 609; Chicago v. Powers, 42 Ill. 169. (3) The city has not been given the right to withdraw the proceeding if it is dissatisfied with the aggregate amount of damages assessed. R. S. 1889, secs. 1815-1821.

OPINION

BRACE, P. J.

This is an appeal by the city of St. Louis from a judgment of the St. Louis City Circuit Court, in a proceeding under sections 6109-6114, Revised Statutes 1899 (secs. 1815-1820, R. S. 1889), for the assessment of damages and benefits arising from the change of grade of Twenty-first, Adams, Papin, Poplar, Randolph and Singleton streets in the city of St. Louis. The judgment, omitting caption, is as follows:

"Now at this day this cause coming on to be heard on the exceptions of the city of St. Louis to the commissioners' report herein, and the court being advised of and concerning the same, doth order and adjudge and decree that the said exceptions of the plaintiff to the several awards of damages in said commissioners' report to and in favor of the following named defendants, to-wit, John Farrell, William Kelly, Louise Voltmer, Kate Supples, Patrick K. Supples, Frederick W. Reinhardt, Regina Walsh and Margaret Walsh, be and the same are hereby sustained, and a new appraisement of the damages claimed by said above-mentioned parties by reason of the said improvement, is hereby ordered, and Delos R. Haynes, Fred C. Bonsack and Henry H. Denison are hereby appointed commissioners to make such appraisement. And the court doth further order, adjudge and decree that the said exception of plaintiff to the several awards of damages in said commissioners' report to and in favor of the following named defendants, to-wit, John C. Parter, Aetna Iron Works, lessee, Aetna Iron Works, Consolidated Steel and Wire Company, St. Louis Brewing Association, Missouri Malleable Iron Company, John Fitzpatrick, William Edenhorn, Sarah A. Edenhorn, Mary E. Walsh, Thomas J. Walsh, Margaret M. Kennedy, James Reedy and Anchor Warehouse Company, be and the same are disallowed and overruled, and the said report of the commissioners as to the last-named defendants severally described and articulated in said commissioners' report be and the same is in all things approved and confirmed, and the cause being submitted for final decree as to the last-named defendants; and it appearing to the court that all of said last-named defendants have been duly served with process, and that none of said defendants have heretofore, within the time allowed by law, filed any answer to the petition herein, nor any exceptions to the report of said commissioners, it is considered and adjudged by the court that the averments of said petition against said defendants are taken as by them respectively, confessed, and the court doth now find that the consent of the owners of the property to be affected by the change of grade of Twenty-first street, Adams street, Poplar street, Randolph street, Singleton street and Papin street under ordinance No. 15119, and to define the limits within which private property has been or will be benefited by changing the grade of Twenty-first street, Adams street, Poplar street, Randolph street, Singleton street and Papin street under ordinance 16465, can not be obtained by the city of St. Louis, and the said city has failed and been unable to agree with such owners for the proper compensation for the damages sustained or likely to be sustained by said defendants by reason thereof. And the court doth now find that the actual damages sustained by John C. Parter, owner, Aetna Iron Works, lessee (the said John C. Parter having heretofore filed a remittitur in the sum of $ 100), of a lot of ground situated in city block No. 2282 and described in said commissioners' report to be the sum of $ 3,078.20; and the actual damages sustained by Aetna Iron Works owner of a lot of ground in city block 2282 and described in No. 2 of said commissioners' report, to be the sum of $ 15,660.20, and the actual damages of Consolidated Steel and Wire Mill Company, owner of a lot in block 2283, described in No. 3 commissioners' report to be $ 1,000, and the actual damages of St. Louis Brewing Association, owner of a lot in block 2282, described in No. 4 of the commissioners' report to be $ 529, and the actual damages of St. Louis Brewing Association, owner of a lot in block 2275, described in No. 5 of commissioners' report to be $ 12,023.25, and the actual damages of Missouri Malleable Iron Company (B. Roth Tool and Forge and Machine Company, lessee), owner of lot in block 2275, described in No. 6 of commissioners' report to be $ 8,580, and the actual damages of James Fitzpatrick, owner of a lot in block 2296, described in No. 7 of commissioners' report to be $ 1,408, and the actual damages of William Edenborn, owner of a lot in block No. 2296, described in No. 10 of commissioners' report to be $ 1,052, and the actual damages of Sarah A. Edenborn, owner of a lot in block No. 2296, described in No. 11 of commissioners' report to be $ 2,400, and the actual damages of Mary E. Walsh, Thos. J. Walsh and Margaret M. Kennedy, owners of lot in block No. 1702, described in No. 14 of commissioners' report to be $ 400, and the actual damages of John Reedy, owner of lot in block 1702, described in No. 15 of commissioners' report to be $ 200, and the actual damages of Anchor Warehouse Company, owner of a lot in block , described in No. 19 of commissioners' report to be $ 3,337.37; which said sums the court doth allow said parties, respectively, as their damages. And the court doth order, adjudge and decree that the city of St. Louis pay the said sums to said parties as aforesaid within six months from the date hereof, with interest thereon from date at the rate of six per cent per annum. The court doth further order, adjudge and decree that all the costs of the proceedings be taxed against and be paid by the city of St. Louis."

The question to be determined is thus stated by counsel for appellant:

"The only question raised on this appeal is with respect to the court entering final judgment upon part of the commissioners' report and appointing new commissioners to make further report respecting the property described in that portion of the report which the court disapproved, the contention of the city being that there can be but one final judgment in the proceeding."

The solution of this question turns upon the proper construction of the statute cited, which constitutes a special and complete code of procedure for the assessment of damages "In all cases where the proper authorities in any city in this State have graded or regraded, or may...