City of St. Louis v. Essex Inv. Co.

• Decision Date: 13 October 1947
• Docket Number: 40359
• Parties: The City of St. Louis v. Essex Investment Company, a Corporation, et. al., Appellants
• Court: Missouri Supreme Court

204 S.W.2d 726

356 Mo. 1028

The City of St. Louis v. Essex Investment Company, a Corporation, et. al., Appellants

No. 40359

Supreme Court of Missouri

October 13, 1947

Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge.

Affirmed.

Tomasso & Seaton and William R. Schneider for appellants.

(1) Interest collected by the clerk of the court on the awardant appellants' judgment paid into the registry of the court by plaintiff, respondent City, and by the clerk placed at interest was properly a part of the awards or judgments and the court erred in overruling the appellants' motion for the payment of such part of the judgment awards to appellants. Snyder v. Cowan, 120 Mo. 389, 25 S.W 382; City of St. Louis v. Senter Commission Co., 343 Mo. 1075, 124 S.W.2d 1180; State ex rel. Ridge v Shoemaker, 278 Mo. 138. (2) The clerk's failure to apportion on the record each awardant appellant's share of the interest to the awardants' judgment is an error which now can be ascertained from the record, and therefore corrected at a subsequent term by nunc pro tunc order, and the trial court erred in overruling the motion for such order. Jabin v. Natl. Acc. Soc. of New York, 41 S.W.2d 874; 46 C.J. 835; 1 Freeman on Judgments (5th Ed.), p. 300. (3) In this cause the appellants' lands were sequestered for public use. Section 1011, Revised Statutes of Missouri 1939, reads as follows: "Nothing contained in any statute of limitations shall extend to any lands given, granted, sequestered or appropriated to any public, pious or charitable use, or to any lands belonging to this state." Appellants' interest in said lands is not released or discharged until their judgment thereto pertaining has been fully satisfied of record.

George L. Stemmler, City Counselor, and Charles J. Dolan, Associate City Counselor, for respondent.

(1) Appellants' cause of action, if any, is against the circuit clerk or his estate or the sureties on his bond. Snyder v. Cowan, 120 Mo. 389. (2) The judgment of the circuit court in the instant case cannot be amended by a "nunc pro tunc" order. Burton v. Railroad, 275 Mo. l.c. 195; 1 Freeman on Judgments (5th Ed.), p. 300. (3) At the time final judgment was rendered in the instant case the court took cognizance of the fact that the clerk had collected interest on the funds deposited in the registry of the court by the City. (4) A "nunc pro tunc" order cannot be based on transactions occurring after the rendition of the judgment. 21 C.J.S., p. 422, Article on Courts.

OPINION

Ellison, J.

This is an appeal under Sec. 126 of the Civil Code, Laws Mo. 1943, p. 390, Sec. 847.126 Mo. R.S.A., from a special order after final judgment entered by the circuit court of the City of St. Louis on February 17, 1947, overruling a motion for a nunc pro tunc order theretofore recently filed by certain defendants in the above entitled condemnation suit, which was instituted by the city in 1920 for the widening of Olive Street and the appropriation of a strip of land on the south side thereof for that purpose. Some 165 abutting property owners were made defendants in the original suit. Of these only 22 joined in the motion and appealed from the adverse ruling thereon.

The nunc pro tunc order sought would have required the plaintiff-respondent city to pay the movants, severally, specified amounts aggregating $ 9,429.08, representing (or in place of) part of the accretions to a certain fund theretofore impounded in the registry of the court. The fund originally was $ 1,939,604, this being the aggregate net damages awarded to all the abutting property owners in the condemnation suit. The city paid it into court on January 29, 1925.

But 17 days thereafter certain of the then defendants obtained a provisional rule in prohibition from this court attacking the condemnation proceedings. About 15 months later, on June 4, 1926, the provisional rule was quashed by our mandate in State ex rel. Siegel v. Grimm, 314 Mo. 242, 284 S.W. 490. During that intervening time, as alleged in appellants' motion, the then circuit clerk had collected $ 68,000 interest on the fund from depositary banks. It is further charged that out of that money he paid nearly $ 15,000 as interest on the awards to some of the property owners; returned $ 17,486.64 to the city; and turned over to his successor in office only about $ 14,000. The motion does not say what became of the rest of the money.

At various times after the provisional rule in prohibition had been quashed the court ordered payments made to the various defendants, including the movants here now. And on June 1, 1931, final judgment was entered in the cause severally in favor of all of them, for the net amounts of their damages, including in one instance interest accredited on the award of a movant here. Interest was also allowed in the judgment to eleven other parties or parcels of land. Likewise, title to the land condemned was vested in the city. In due time a motion for new trial was overruled, and no appeal was prosecuted by any defendant.

Nevertheless, on April 7 and 14, 1944, the defendants here filed motions for payment of the "balance" of their several awards. These were overruled on September 12, 1944, in a formal order, which recited that on January 8, 1935, when the successor circuit clerk took office, the former circuit clerk turned over to him $ 15,472.34, as being all the funds then remaining in the registry of the court; and that the successor circuit clerk thereafter paid out of said funds $ 1223.38 to clear checks issued by his predecessor, leaving $ 14,248.96 in his hands; and that out of that remaining sum the successor clerk on proper applications to and orders by the court, had paid out $ 14,028.96, leaving $ 220 in the fund, all of which was due on balances of unpaid awards (not interest), thereby exhausting the money in the registry of the court. No defendant appealed from this order.

Over two years later, on August 30, 1946, by leave of court, the appellant movants filed their present motion for a nunc pro tunc order requiring the city out of its own funds to pay back into the registry of the court a sum sufficient to satisfy their various interest claims; and that the circuit clerk be required to disburse this money to them severally, a separate check to each movant for the amount of his claim, as specified in the motion, totalling $ 9,429.08.

The reasons assigned were that the former circuit clerk in 1925-6 had collected interest on the award fund in the registry of the court, as stated at the outset, and had paid $ 17,486.64 thereof to the city without their knowledge or consent; that they did not know the money so received by the city was not in the court registry when they had made their previous efforts to obtain the interest due them; and that "it was not until very recently that they learned that their said interest had thus been improperly paid to" -- the city. The trial court simply overruled the motion without any finding of facts.

The first question to be determined is whether this court has jurisdiction of the appeal. The appellants have neglected to conform to our Rule 1.08(1) requiring the appellants' brief to contain "a concise statement of the grounds on which the jurisdiction of the review court is invoked." It cannot be because the City of St. Louis is a party, since in this instance the city is not involved as a county or political subdivision of the State, but only as a municipal corporation or city. ^[1] Neither can it be because the proceeding originally was a condemnation suit involving the title to the real estate, for that issue has long since...