City of St. Louis v. Senter Commission Co.

• Decision Date: 21 February 1939
• Docket Number: 35481
• Citation: 124 S.W.2d 1180,343 Mo. 1075
• Parties: City of St. Louis, Appellant, v. Senter Commission Company et al., Defendants, Blanke-Wenneker Candy Company, a Corporation, Respondent
• Court: Missouri Supreme Court

124 S.W.2d 1180

343 Mo. 1075

City of St. Louis, Appellant, v. Senter Commission Company et al., Defendants, Blanke-Wenneker Candy Company, a Corporation, Respondent

No. 35481

Supreme Court of Missouri

February 21, 1939

Appeal from Circuit Court of City of St. Louis; Hon. Clyde C Beck, Judge.

Affirmed.

E H. Wayman, Jno. T. Hicks and Francis J Sullivan for appellant.

(1) When appellant deposited the award of commissioners into the registry of the court for the benefit of respondent, said action by appellant stopped the running of interest from the date of such deposit. St. Louis v. Richardson, 281 S.W. 39; Brunn v. Kansas City, 16 Mo. 108; Martin v. St. Louis, 139 Mo. 246. (2) When appellant deposited said award for the benefit of respondent the respondent was entitled to withdraw said money pending the appeal and therefore was not entitled to interest on said money after May 25, 1932. Railway Co. v. Eubanks, 130 Mo. 270; Railway Co. v. Fowler, 113 Mo. 458; Railway Co. v. Fowler, 142 Mo. 670; Snyder v. Cowan, 120 Mo. 389; Railway Co. v. Clark, 121 Mo. 169. (3) When appellant deposited said award into the registry of the court for the benefit of respondent on May 25, 1932, the final judgment entered on May 17, 1932, was satisfied. Sec. 2841, R. S. 1929; In re Wetzel's Estate, 263 S.W. 110, affirming In re Wetzel's Estate, 243 S.W. 395; Erwin v. Jones, 191 S.W. 1047; Scullin v. Ry. Co., 90 S.W. 1028, 192 Mo. 6; Sec. 8, Art. XXI, St. Louis Charter. (4) Respondent is entitled to interest earned on the award while the same is in the custody of the court if it earned interest, but said interest is not chargeable to appellant. Railway v. Clark, 121 Mo. 169, 25 S.W. 192; Railway v. Fowler, 142 Mo. 670; Sec. 6, Art. XXI, St. Louis Charter.

Israel Treiman and Morris J. Levin for respondent.

(1) A judgment for damages in a condemnation proceeding bears interest, like any other judgment, from the date of its rendition until it is paid. Plum v. Kansas City, 101 Mo. 525, 14 S.W. 657; Martin v. St. Louis, 139 Mo. 246, 41 S.W. 231; St. Louis v. Richardson, 281 S.W. 395; Brunn v. Kansas City, 216 Mo. 108, 115 S.W. 446; 20 C. J., p. 806, Eminent Domain, sec. 252; Sec. 2841, R. S. 1929. (2) Under the statutory law of Missouri and the charter of the city of St. Louis, appellant was under no duty to pay to respondent or deposit into court for the respondent the amount of the judgment rendered by the Circuit Court of St. Louis in the condemnation proceedings after the city took an appeal from said judgment and pending the disposition of said appeal, and consequently the respondent could not have obtained an execution on said judgment or withdrawn any deposit covering said judgment during the time when said appeal was pending. Sec. 1022, R. S. 1929; St. Louis Charter, Art. XXI, Sec. 8; Sec. 7340, R. S. 1929; Brunn v. Kansas City, 216 Mo. 108, 115 S.W. 446; St. Louis v. Senter Comm. Co., 336 Mo. 820, 82 S.W.2d 87; Mo. Const. Art. II, Sec. 21; Railway Co. v. Eubanks, 130 Mo. 270, 32 S.W. 658. (3) The voluntary and gratuitous deposit of the amount of the award into the registry of the court by the city of St. Louis conferred no rights upon the respondent and did not require respondent to make any effort to withdraw it and thereby lose the 6 per cent interest thereon to which it became entitled when the city elected to take its appeal. St. Louis Charter, Art. XXI, Sec. 8; Railway Co. v. Evans & Howard Brick Co., 85 Mo. 307; Martin v. St. Louis, 139 Mo. 246, 41 S.W. 231. (4) The deposit by the city of the bare amount of the judgment without adding thereto the interest that had concededly accrued thereon during the time intervening between the rendition of the judgment and the deposit did not operate as a tender in payment of the judgment because of its insufficiency. 62 C. J., pp. 660, 661, Tender, secs. 6, 7; 34 C. J., pp. 688, 689, Judgments, secs. 1059-1061; 2 Freeman on Judgments (5 Ed.), sec. 1119; Rauer's Law & Collection Co., Inc., v. Sheridan Proctor Co., 40 Cal.App. 524, 181 P. 71; Wright v. Behrens, 39 N. J. L. 413; Vermule v. Vermule, 86 N. J. L. 507, 91 A. 1033.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

Appeal by the City of St. Louis, plaintiff, from an order and judgment of the circuit court of said city allowing interest in the sum of $ 14,875 upon a fund paid into court in condemnation proceedings.

Plaintiff city had instituted proceedings, pursuant to its charter and ordinances, for the widening and improvement of Market Street, requiring the condemnation of private property. Blanke-Wenneker Candy Company, a corporation, was lessee of certain real estate in which it had installed "trade fixtures" which it claimed to own. The commissioners appointed to assess benefits and damages awarded said corporation the sum of $ 85,000 as damages, which award was confirmed by the circuit court by its judgment, entered May 17, 1932, which judgment, unless reversed on appeal, was the final judgment in the condemnation proceedings. The city, on May 19, 1932, appealed and the judgment was affirmed by this court April 16, 1935. [See City of St. Louis v. Senter Commission Co. et al., 336 Mo. 820, 82 S.W.2d 87.] After entry of said judgment of May 17, 1932, and before the order or judgment allowing interest -- the subject of the present appeal -- Blanke-Wenneker Candy Company discontinued business, went into receivership and then took steps looking to liquidation and dissolution, in which liquidating trustees were appointed. They were duly substituted for the corporation. No question is raised as to their authority to act for the corporation. For the purposes of this case the corporation may, for convenience and brevity, be referred to as defendant and respondent.

After it had taken its appeal from the final judgment in the condemnation proceeding and on, to-wit, May 25, 1932, the city, plaintiff in said proceeding, paid into court the sum of $ 3,103,807.82, being the total amount of damages (less benefits), adjudged by the court for all property to be taken or damaged, and with said deposit filed a "memorandum" or statement stating that the deposit was made as "all the damages sustained by the parties owning or claiming an interest in the several properties appropriated and damaged, . . . according to the finding and judgments of this court entered herein on the 17th day of May, 1932; such payment and deposit being for and to the use of the respective defendants named in each item of the commissioners' reports heretofore filed . . . or to any other persons who may appear to be entitled thereto, in accordance with said judgment accordingly as said parties shall be found entitled thereto by this court on motions for distribution." The "memorandum" then designated the respective sums deposited for each property owner. For this defendant the sum specified was "Award No. 22 . . . To Blanke-Wenneker Candy Co., a corp., Lessee, in the sum of $ 85,000.00." The deposit included no interest on the $ 85,000.

After the affirmance by this court of said circuit court judgment and on May 14, 1935, defendant, by its liquidating trustees, filed in the circuit court a petition or motion asking the court to order paid to them for defendant said award of $ 85,000, with interest thereon at six per cent per annum from May 17, 1932, the date of the judgment, to April 16, 1935, the date of its affirmance by this court. On May 17, 1935, plaintiff filed answer to said petition, denying defendant's right to said award or any part thereof or interest thereon, on the ground that the receivers of defendant, while in charge, had sold and removed "substantially all of the property and effects" of defendant and received and kept the proceeds, and defendant was therefore not entitled to the award. The answer alleged that plaintiff, upon paying into court the $ 85,000 award became entitled to said "trade fixtures" and to possession thereof and had been deprived thereof by the act of the receivers in selling and removing same; -- in effect an allegation that plaintiff had never obtained possession. Said answer further asserted that plaintiff was entitled to said $ 85,000. On December 10, 1936, the court granted said petition of the liquidating trustees, allowing interest as prayed. Defendant, through its liquidating trustees, received the $ 85,000. No point is made on this appeal as to said principal sum. Plaintiff appealed only from the allowance of interest.

By statute, Section 2841, Revised Statutes 1929 (Mo. Stat. Ann p. 4628), money due upon a judgment or order of court draws interest "from the day of rendering the same until satisfaction be made by payment, accord or sale of property," the rate allowed being six per cent per annum except where the judgment is upon a contract bearing a higher rate. It is conceded in this case that the judgment entered by the circuit court May 17, 1932, was a final judgment within the purview of said statute and bore interest at six per cent per annum from date of its rendition, wherefore we need not cite decisions sustaining those propositions. It is also conceded that either party might appeal from such judgment. The parties differ somewhat as to the effect of the appeal taken by the city. Appellant says that respondent could have withdrawn the money pending the appeal and if the money had not been paid into the registry of the court could have enforced payment by execution. It cites Chicago, S. F. & C. Ry. Co. v. Eubanks, 130 Mo. 270, 32 S.W. 658, St. L. Oak Hill & C. Ry. Co. v. Fowler, 113 Mo. 458, 20 S.W. 1069, Ibid., 142 Mo. 670, 44 S.W. 771, and like cases based upon the statute providing for condemnation by railroad and telegraph companies, which, as respondent contends, differs from the law governing...