City of St. Louis v. Senter Com'n Co.

• Citation: 102 S.W.2d 103,340 Mo. 633
• Decision Date: 19 February 1937
• Docket Number: 32488,32507
• Parties: City of St. Louis v. Senter Commission Company et al., Defendants, Century Electric Company, Appellant. City of St. Louis v. Senter Commission Company et al., Defendants, Edwin S. Pillsbury, Appellant
• Court: Missouri Supreme Court

102 S.W.2d 103

340 Mo. 633

City of St. Louis v. Senter Commission Company et al., Defendants, Century Electric Company, Appellant. City of St. Louis v. Senter Commission Company et al., Defendants, Edwin S. Pillsbury, Appellant

Nos. 32488, 32507

Supreme Court of Missouri

February 19, 1937

Appeal from Circuit Court of City of St. Louis; Hon. Robert W Hall, Judge.

Affirmed.

Eilers & Schaumberg, G. A. Ryan and Rassieur, Long & Yawitz for appellants.

(1) There is no principle of law more firmly established than that the judgment in a cause must follow and conform to the verdict, decision or findings in all substantial particulars. Jefferson City v. Wells, 263 Mo. 231; St. Louis & K. C. Ry. Co. v. Donovan, 149 Mo. 93; State v Hesterly, 178 Mo. 43; Haumueller v. Ackermann, 130 Mo.App. 390; Newton v. Railroad Co., 168 Mo.App 199; Hall v. Mullanphy Planing Mill Co., 16 Mo.App. 456; Turley v. Barnes, 67 Mo.App. 237; 33 C. J., pp. 1169, 1173, sec. 106; Black on Judgments (2 Ed.) 142. The report of a referee has been held to be equivalent to a special verdict. Woodrow v. Younger, 61 Mo. 395; Turley v. Barnes, 67 Mo.App. 237; Lackland v. Renshaw, 256 Mo. 152. The report of the commissioners in this case also occupies the position of a verdict. Long v. Talley, 91 Mo. 309; St. Louis v. Busch, 252 Mo. 216. And the provisions of the charter of the city of St. Louis are that the court upon approving the commissioners' report shall render final judgment thereon reciting the report and adjudging that so much of the report as is a judgment for benefits against specific property be a lien on such property. St. Louis v. Senter Comm. Co., 335 Mo. 492, 73 S.W.2d 390. And since the court's judgment in this cause does not conform to the report of the commissioners, there is such a defect in the record proper that the judgment as rendered cannot stand; and it was error to overrule Century Electric Company's motion in arrest of judgment. City v. Kraleman, 325 Mo. 572, 29 S.W.2d 696; Stid v. Mo. Pac. Ry. Co., 211 Mo. 414; Funkhouser v. Mallen, 62 Mo. 555.

Edgar H. Wayman, John T. Hicks and Francis J. Sullivan for respondent.

(1) A question not raised in the trial court will not be considered on appeal. Funkhouser v. Mallen, 62 Mo. 555; State ex rel. Mulholland v. Smith, 41 S.W. 906, 141 Mo. 1; State ex rel. Jackson County v. Chick, 48 S.W. 829, 146 Mo. 645; Laclede Natl. Bank v. Richardson, 56 S.W. 1117, 156 Mo. 270, 79 Am. St. Rep. 528; Palmer v. Alexander, 62 S.W. 691, 162 Mo. 127; Allen v. Labsap, 87 S.W. 926, 188 Mo. 692; Baker v. McMurry Contracting Co., 223 S.W. 45, 282 Mo. 685; Huling v. Bandera Flagstone Co., 87 Mo.App. 349; Trustees of Christian University v. Hoffman, 69 S.W. 474, 95 Mo.App. 488; Krup v. Corley, 69 S.W. 609, 95 Mo.App. 640; Bank of Hillsboro v. Bowen, 196 S.W. 1026; Van Wagner v. Slane, 14 S.W.2d 710. (a) A point not presented and passed on by the trial court will not be considered on appeal. Warner v. Morin, 13 Mo. 455; Wolff v. Walter, 56 Mo. 292; Kansas City v. McGovern, 78 Mo.App. 513; Wrather v. Lawson, 247 S.W. 473. (b) A question of law which was not presented to nor passed upon by the trial court cannot be raised on appeal. Thomas v. Scott, 119 S.W. 1098, 221 Mo. 271; In re Aiken, 171 S.W. 342, 262 Mo. 403; Kirksville v. Ferguson, 172 S.W. 4, 262 Mo. 661. (c) An appellant cannot, upon the appeal, assume an attitude inconsistent with that taken by him upon the trial. Knapp v. Knapp & Co., 29 S.W. 885, 127 Mo. 53; Edwards v. Stewart, 44 S.W. 326, 141 Mo. 562. (d) An assignment of error as to a matter not embraced in the pleadings will not be considered on appeal. McMerty v. Morrison, 62 Mo. 140. (e) An issue of fact not presented on trial will not be considered on appeal. State ex inf. Barrett ex rel. Ryan v. Huffman, 248 S.W. 985. (f) Appellants cannot urge objection not presented in pleadings or trial. Grant City v. Salmon, 288 S.W. 88, 221 Mo.App. 853. (2) Judgment in condemnation cases is in the nature of a verdict. St. Louis v. Boyce, 130 Mo. 572. (3) Trial court may modify the report of commissioners and assess benefits anew. St. Louis v. Buss, 159 Mo. 9; St. Louis v. Lawton, 189 Mo. 474.

OPINION

Collet, J.

On November 16, 1922, the city of St. Louis instituted condemnation proceedings for the establishment, opening and widening of Market and other streets in the city of St. Louis. Commissioners were appointed to assess benefits and damages and in due time made their report. Exceptions were filed to this report by a number of property owners affected. These exceptions were overruled, judgment was entered and after unsuccessful motions for new trial and in arrest of judgment appeals were granted the exceptors to this court. Those appeals have been consolidated and are now presented as one case. All of the questions raised in this cause except one were disposed of in the case of City of St. Louis v. Senter Commission Company et al., 336 Mo. 1209, 84 S.W.2d 133. The sole remaining question will be stated in connection with the following outline of the facts.

The commissioners' report divided a tract owned by the Century Electric Company into three parts describing them as items 224a, 224b and 224c. (See plat on opposite page.) Tract "a" which is approximately 459 feet long, 44 feet wide at one end and tapers to a point at the other, was taken for right-of-way. Tract "b," the small triangular tract shown in black on the plat, was formerly in the street but was by this proceeding vacated. Tract "c" contained all of tract 224 except tract "a" which was taken for right-of-way. It included tract "b." The commissioners' report, after describing tracts 224a, b and c, set out the damages and benefits in the following manner:

"We ascertain (the damages) to be

$ 10,200.00

and against the (b) described parcel

of land we assess

Nothing

on account of such vacation; and against

the (b) described parcel of land we assess

34,330.00

the amount to which, in our opinion, said (b)

described parcel, and the respective estates and

interests therein, jointly and severally, will be

especially benefited by this proposed improve-

ment, the sum and excess of which benefits over

the damages

24,130.00

the city of St. Louis shall recover against said

lot or parcel assessed."

It will be noted that the entire benefits of $ 34,330 are assessed against tract "b" and none are assessed against tract "c." In the judgment the trial court changed the letter "b" as it appears at both places in the italicized portion of the assessment to "c" with the result that the assessment of benefits was made against tract "c" instead of tract "b." The city contends that this action of the court was proper since the assessment of benefits against tract "b" was obviously the result of a typographical error, while appellant insists that the judgment must be reversed and the cause remanded with directions to the trial court to enter its judgment in accordance with [SEE ILLUSTRATION IN ORIGINAL] the commissioners' report thereby assessing all the benefits against tract "b." In its exceptions to the commissioners' report, appellant complained that "the benefits assessed in said paragraph 224 are excessive, arbitrary and fictitious, and that no benefits will accrue to the Century Electric Company by reason of said condemnation." In appellant's motion for new trial and in arrest of judgment there is no direct reference to the complaint now made that the judgment did follow the commissioners' report which it confirmed. The city contends that since this question was not called to the trial court's attention it is not now open for consideration. Appellant says the question was properly raised in the court below by the first assignment of the motion in arrest reading as follows:

"First: Because on the face of the record the judgment is erroneous."

This assignment was not sufficiently definite to call the trial court's attention to the error now complained of. [Frowein v. Poage, 231 Mo. 82, l. c. 91, 132 S.W. 241; Wiltshire v. Triplett, 71 Mo.App. 332, l. c. 337; Sweet v. Maupin, 65 Mo. 65; Williams v. Jenkins, 326 Mo. 722, 32 S.W.2d 580.] But was it necessary that the complaint now urged -- that the judgment did not follow the commissioners' report -- be called to the trial court's attention in order to authorize its consideration on appeal? The determination of that question involves the consideration of several principles, the first being the nature of the commissioners' report, i. e., whether it is a part of the record proper.

This court has held that the report of commissioners in a condemnation case of this character occupies the position of a verdict. [St. Louis v. Busch, 252 Mo. 209, 158 S.W. 309; Long v. Talley, 91 Mo. 305, 3 S.W. 389.] In a case from another jurisdiction where certiorari may be utilized to correct errors of law appearing on the record proper, a commissioner's report was considered as a part of such record. [Leyba v. Armijo (N. M.), 68 P 939.] A verdict being a part of the record proper it follows that the report of commissioners which occupies the position of a verdict is likewise a part of the record proper. The problem is therefore narrowed to the determination of whether this court will consider an alleged error appearing upon the face of the record proper which was not called to the trial court's attention by motion in arrest but was raised for the first time on appeal. Many authorities hold that such errors must be preserved by motion in arrest of judgment while many others hold that they will be considered on appeal in the absence of such motion. The determination of the proper rule to be followed in cases of this character, while somewhat laborious, is intensely interesting, since it involves the tracing of...