Hilton v. City of St. Louis.

• Decision Date: 21 December 1889
• Parties: HILTON v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

12 S.W. 657

99 Mo. 199

HILTON v. CITY OF ST. LOUIS et al.

Supreme Court of Missouri.

December 21, 1889.

MUNICIPAL CORPORATIONS — EMINENT DOMAIN — INTERPLEADER — INTEREST — VERIFICATION OF PLEADINGS.

1. Under the provision of the charter of St. Louis (2 Rev. St. Mo. p. 1607) that if the ownership of property condemned be in controversy the damages shall be paid into court for the use of the successful claimant, the city, where suit has been begun by one claimant, may pay the damages into court and file an answer in the nature of a bill of interpleader, bringing in all the rival claimants.

2. It is not error to allow the voluntary appearance and answer of an adverse claimant who should and would have been brought in by interpleader.

3. Refusal to allow interest on damages assessed in condemnation proceedings by a city is not error, where, there being adverse claimants, suit has been inactively prosecuted, and it does not appear whether the property was vacant or improved, or that the city had yet taken possession.

4. Under the practice act of Missouri, pleadings need not be verified.

Appeal from St. Louis circuit court; GEORGE W. LUBKE, Judge.

M. Hilton, for appellant. L. Bell and H. D. Wood, for respondents.

SHERWOOD, J.

The city of St. Louis instituted condemnation proceedings to open Park avenue from Jefferson avenue to Grand avenue. This was in February, 1880, and Dougherty et al. were defendants. The result of these proceedings was that damages were assessed in favor of the owner of lots 5, 6, and 7, in city block 1,282, at the sum of $1,940.40. On the 30th day of March, 1881, the city passed an ordinance appropriating money to pay said damages, which ordinance went into effect April 30, 1881. This suit was brought by Mary E. Tanner, on November 19, 1881, for the damages assessed; she claiming to be owner of said lots. On the 14th of April, 1884, she filed her second amended petition for the damages, and, among other things, alleged that on the 30th of June, 1881, she demanded payment of the city of said damages, which the city refused to pay. On April 17, 1884, on the joint motion of Mary E. Tanner and Silas D. Hilton, the latter was substituted in this action in the lieu and stead of Mary E. Tanner. On the 10th day of July, 1881, Joseph S. Dobyns, attorney for Huntington Smith, made a demand on the city for the sum already mentioned. Smith was not a party to the condemnation proceedings, nor, so far as it appears, was Tanner or Hilton. On June 27, 1884, the city, acting under the provisions of section 11 of article 6 of the city charter, (2 Rev. St. p. 1607,) to-wit, that, "if the ownership of property condemned be in controversy, the amount of the damages assessed for said property shall be paid into court, for the use of the successful claimant of the property," paid the money assessed as damages into court. On November 21, 1884, the city filed a second answer. Among other things the answer set up, were that the city had paid into court, etc., as already stated; that not only Silas D. Hilton claimed to be the owner of the property, and, as such, entitled to the damages aforesaid, and had notified the defendant not to pay the same to any one but himself, but that Huntington Smith and William D. Griswold also made like claims to said lots, and the sum assessed as damages; and prayed that Smith and Griswold might be made parties to the action, and required to interplead for said damages; and that defendant be discharged from further liability in this cause," etc. On January 5, 1886, Griswold entered his voluntary appearance and a disclaimer. On the same day, Huntington Smith entered his voluntary appearance; claiming to be the true owner of the lots, and of the sum assessed as damages. The plaintiff introduced no evidence in support of his claim, and objected to any being introduced on the part of the city, and on the part of Huntington Smith. But the court permitted evidence to be introduced showing that the city did pay the sum aforesaid into court, in accordance with the charter; and it was also shown that Dobyns, as attorney of Smith, had made demand on July 10, 1881, of the city for the amount of damages assessed. At the close of the testimony the plaintiff asked the following declarations of law, which the court refused to give: (1) The court declares the law to be that upon the pleadings and evidence in this case the plaintiff is entitled to recover; (2) the court declares the law to be, upon the pleadings and evidence in this case, plaintiff is entitled to a judgment in this case for the sum of $1,940.40, with interest thereon from the 30th day of June, 1881, to date of judgment."

The court thereupon entered the following decree: "The court, having seen and fully considered the motion of plaintiff to strike from the files of this court the entry of appearance and reply of said Huntington Smith to the second amended answer of the city of St. Louis in this cause, doth now overrule said motion. And, the court being now also fully advised as to the matters in issue in this cause presented by the second amended answer of cross-petition of defendant the city of St. Louis, filed in this cause, doth find in favor of said defendant the said city of St. Louis, and doth find that heretofore, under an ordinance of said city, entitled `An ordinance to establish and open Park avenue from Jefferson to Grand avenue,' approved March 11, 1880, proceedings were had in this court, at the suit of said city, whereby, on February 21, 1881, a final decree was entered condemning for public use all that part of lots numbered 5, 6, and 7 in block 1 of Compton Hill addition to the city of St. Louis, and in city block 1,282 of said city, fronting 75 feet on the south line of Park avenue, as laid out in said addition, by a depth south on the west line of lot 7 of 9 feet 4 and 5/8 inches, and on the east line of lot 5 of 9 and 6-12 feet to the south line of said Park avenue, as established by city ordinance No. 11,314, and all that part of said lots numbered 5, 6, 7, embraced within the lines of said Park avenue; that in and by said proceedings of condemnation the net sum of $1,940.40 was assessed as the damages which the owners of said realty so condemned would sustain by the taking thereof for public use as aforesaid; that afterwards, on March 30, 1881, by another ordinance of the municipal assembly of said city, approved that day, there was appropriated and set apart out of the fund of that city, for street openings, a sum sufficient to pay the damages of $1,940.40 aforesaid; that thereupon one Mary E. Tanner, to whose rights the plaintiff, Silas D. Hilton, has since become assignee, claimed to be the owner of said realty so condemned, and demanded of defendant the payment of said damages; and that thereupon one William D....