Guaranty Savings & Loan Ass'n v. City of Springfield, 5763.

• Decision Date: 10 January 1938
• Docket Number: No. 5763.,5763.
• Citation: 113 S.W.2d 147
• Court: Missouri Court of Appeals
• Parties: GUARANTY SAVINGS & LOAN ASS'N et al. v. CITY OF SPRINGFIELD.

113 S.W.2d 147

GUARANTY SAVINGS & LOAN ASS'N et al. v. CITY OF SPRINGFIELD.

No. 5763.

Springfield Court of Appeals. Missouri.

January 10, 1938.

Rehearing Denied February 8, 1938.

Appeal from Circuit Court, Jasper County; Ray Watson, Judge.

Suit by the Guaranty Savings & Loan Association and another against the City of Springfield, Missouri, to recover damages allegedly sustained because of the building of a viaduct in front of mortgaged property so as to impair the plaintiff's security. From a judgment in favor of the plaintiffs, the defendant appeals.

Judgment affirmed.

John H. Flanigan, of Carthage, and Kirby Patterson and W. D. Tatlow, both of Springfield, for appellant.

John T. Sturgis, Frank B. Williams, and William R. Collinson, all of Springfield, for respondents.

ALLEN, Presiding Judge.

This is an appeal from the circuit court of Jasper county. The plaintiffs, respondents herein, recovered $3,665.90 against the defendant, appellant. Defendant filed its motion for a new trial which was overruled, and thereafter, in due time, defendant appealed to this court.

The facts involved are as follows: J. S. Hively was the owner of four pieces of improved realty abutting on the west side of Benton avenue in the city of Springfield, Mo. These properties face east. Hively acquired this property on the 9th day of February, 1927, by warranty deed, which was recorded on the same day in the office of the recorder of deeds for Greene county. On the same day J. S. Hively and his wife, Emma Hively, executed to respondent Guaranty Savings & Loan Association separate deeds of trust on each of the four pieces of property. These deeds of trust were recorded in the office of the recorder of deeds for Greene county on the 10th day of February, 1927. On October 4, 1927, the appellant city of Springfield, by ordinance duly passed, authorized the construction of a viaduct, known as the "Benton Avenue Viaduct." This viaduct is several blocks long and extends in a northerly and southerly direction as does Benton avenue. The four pieces of realty in question are near the north end of the viaduct and on the west side thereof, facing east. The viaduct at this point is in front of the property in question and approximately fourteen to sixteen feet high and on a level with second story windows of the houses located on the property. Work was begun on the viaduct on November 1, 1927. On December 9, 1927, appellant city of Springfield paid to J. S. Hively and his wife, Emma, the sum of $4,000 in settlement of the damage to the real estate, caused by the construction of the viaduct. No notice of this settlement was given to the respondent Guaranty Savings & Loan Association, the mortgagee in the deeds of trust above mentioned, and no provision made by the appellant city of Springfield to protect the rights of the mortgagee and the record does not disclose that the respondent, mortgagee in the deeds of trust, had any knowledge of such settlement nor does it disclose when the respondent learned of the settlement made with the Hivelys. At the time of the settlement the deeds of trust on the property were not in default. The viaduct was completed and accepted by the appellant city of Springfield on September 1, 1928. In June, 1931, the Hivelys defaulted in the payment then due on the deeds of trust held by respondent Guaranty Savings & Loan Association. The respondent took possession of the property in July, 1931, and on the 20th day of June, 1933, the property was sold by the trustee, after publication of the required notice of sale. These properties were purchased by respondent at the sale for less than was due on respondent's notes and mortgages.

The plaintiffs, respondents, filed this suit to recover from the defendant, appellant, damages alleged to have been sustained by reason of the building of the viaduct, alleging that the property was damaged for public use, without the consent of the respondent Guaranty Savings & Loan Association, and without payment of just compensation therefor; and that the respondent had been deprived of its property without due process of law.

As hereinbefore stated, respondent recovered in the trial court the sum of $3,665.90 for damages to its interest as mortgagee, in the four pieces of property.

The parties hereto have not favored us with a printed bill of exceptions containing the testimony in narrative form, but have stipulated that the facts on which this case was tried below were admitted either by the pleadings or by stipulation of the parties, except the allegations as to the amount of respondent's damages. They then stipulate that the appellant waives objections and exceptions made and saved at the time of the trial, to the omission and exclusion of evidence and as to the amount of damages awarded. Respondent Guaranty Savings & Loan Association waives the omission of appellant to print the evidence in narrative form in the bill of exceptions. By this stipulation it is admitted by the parties that the amount of damages, if the respondent Guaranty Savings & Loan Association has a cause of action, was not excessive, and therefore under these stipulations the only point for our determination is whether or not the respondent had a cause of action against the appellant, and if such cause of action existed and has not been extinguished, then the judgment of the lower court must be affirmed, as all other questions are foreclosed and precluded by stipulation of the parties.

The respondents, after the appeal was lodged in this court, filed a motion to dismiss the appeal for the reason that the original bill of exceptions prepared by the court reporter and filed in the trial court did not show affirmatively and as a matter of record that the defendant (appellant) objected and excepted to the court's action in overruling the motion for a new trial. The printed bill of exceptions contains these objections and exceptions but a certified copy of the original bill of exceptions shows that they do not appear in the original bill of exceptions. There is a long line of authority in this state holding that where the bill of exceptions fails to show an exception saved to the overruling of a motion for a new trial that the errors therein are not preserved for review. State v. Harvey, 105 Mo. 316, 16 S.W. 886; State v. Arrowood, Mo.Sup., 11 S.W.2d 1015; State v. Parnell, 206 Mo. 723, 105 S.W. 742; State v. Truedell, Mo.Sup., 192 S.W. 404; and Missouri cases cited in 17 C.J. 76, par. 3339, note 21, and civil cases in 3 C.J. 969, par. 865, notes 46-49. Such was the rule until the case of State v. Wolzenski, 105 S.W.2d 905, was decided by the Supreme Court. The concurring opinion of Ellison, J., which was concurred in by a majority of the court and adopted by the court In Banc, held that the mere failure to note objections and exceptions to the overruling of a motion for a new trial, in the bill of exceptions, could in no way mislead the trial court, or lead it into error, for the reason that when an appellant follows up the adverse ruling, on his motion for a new trial, by obtaining leave to file bill of exceptions and files affidavit for appeal, that these acts are in and of themselves sufficient to apprise the court that the appellant is standing on the assignments of error in his motion for a new trial and the appellate court should, under these circumstances, consider these assignments in passing on the case.

We, therefore, in following the holding in this opinion, must overrule the respondents' motion to dismiss the appeal and will consider the assignments of error contained in appellant's motion for a new trial.

The only assignment of error that can be considered in view of the record in the case is that the trial court erred in refusing to give appellant's declarations of law, which were in the nature of a demurrer and which were offered at the close of the testimony in the case.

It is the position of appellant that respondent Guaranty Savings & Loan Association is not entitled to recover in this case for the reason that the damage to the property in question is consequential and that for this reason the settlement made by the appellant city of Springfield with the Hivelys on the 9th day of December, 1927, is a full and complete bar to respondents' cause of action. Respondents contend that the judgment of the trial court should be affirmed because the mortgagee is an owner and the mortgagee's interest is property, within the meaning of article 2, § 21, of the Constitution of Missouri; and that the settlement made by the appellant city of Springfield with the Hivelys and the release taken from them did not extinguish respondents' cause of action.

There seems to be no question that if this property had been taken in whole or in part and a settlement made merely with the mortgagors, the Hivelys, that such settlement would not affect the right of the mortgagee, Guaranty Savings & Loan Association, to assert its action against the appellant for its damages for the taking of the property. Morgan v. Willman, 318 Mo. 151, 1 S.W.2d 193, 58 A.L.R. 1518. A mortgagee in a deed of trust has a remedy for the taking in whole or in part of the mortgaged property for public use. He has a cause of action for damages, where the property is damaged for public use and not taken either in whole or in part; he also has a cause of action for damages against an individual who has taken or damaged the mortgaged property. His cause of action where the property is damaged for public use, or where damaged by an individual, accrues after default in the mortgage and foreclosure and after his loss, if any, is determined. Chouteau v. Boughton, 100 Mo. 406, 13 S.W. 877; Heitkamp v. La Motte Granite Co., 59 Mo.App. 244; Girard Life Ins. Annuity & Trust Co. v. Mangold, 83 Mo.App. 281; Morgan v. Willman, supra.

The appellant earnestly contends that the property in question was not taken and that the damages to the property are...