Jackson County v. Hesterberg

• Court: Missouri Court of Appeals
• Writing for the Court: Before DIXON; Upon the merits of the appeal, the defendant landowner first claims that the entire proceedings are void because the trial court denied the defendant landowner an opportunity to introduce evidence and testimony challenging the plaintiff
• Citation: Jackson County v. Hesterberg, 519 S.W.2d 537 (Mo. App. 1975)
• Decision Date: 03 February 1975
• Docket Number: No. KCD,KCD
• Parties: JACKSON COUNTY, Missouri, Plaintiff-Respondent, v. Gene H. HESTERBERG et al., Defendants, Carl T. Moore, Defendant-Appellant. 26136.

Page 537

519 S.W.2d 537

JACKSON COUNTY, Missouri, Plaintiff-Respondent, v. Gene H. HESTERBERG et al., Defendants Carl T. Moore, Defendant-Appellant.

No. KCD 26136.

Missouri Court of Appeals, Kansas City District.

Feb. 3, 1975.

As Modified Feb. 26, 1975.

William K. Poindexter, William A. Collet, Kansas City, for defendant-appellant.

Harold L. Fridkin, County Counselor, Tom J. Helms, Asst. County Counselor, Kansas City, for plaintiff-respondent.

Before DIXON, Chief Judge and SHANGLER and WASSERSTROM, JJ.

In this condemnation proceeding, the defendant, Carl T. Moore, appeals from judgment entered on a jury verdict awarding $51,000 damages for his property taken by Jackson County, Missouri, under eminent domain for use as a park. The plaintiff county has not appealed. Defendant asserts that he was denied due process of law when the trial court did not allow defendant to discover or introduce evidence challenging plaintiff's right to condemn at the initial hearing on the plaintiff's petition. Defendant also asserts error in the denial of defendant's motion for new trial because the $51,000 jury verdict was not within the range of nor supported by any of the competent evidence adduced during trial. The plaintiff has also filed a motion to dismiss defendant's appeal, taken with the case and requiring initial consideration.

On May 10, 1972, the trial court entered the following order:

'Upon application of counsel for defendant Dr. Carl T. Moore . . ., the Clerk of this court is hereby ordered to pay and disperse (sic) out of the deposit made by plaintiff the following sum $35,392.70 in full satisfaction of the judgment hereinbefore entered.' (Emphasis added.)

Plaintiff's motion to dismiss was filed January 15, 1973. April 16, 1973, defendant landowner deposited in the registry of this court $54,392.70. This amount was equal to the $35,392.70 withdrawn May 10, 1973 and the.$19,000 paid in to the circuit clerk pursuant to the award of the commissioners in this case.

Plaintiff's motion to dismiss urges that the withdrawal of the funds deposited after the jury verdict constitutes a satisfaction of the judgment and the appeal of defendant is moot.

This contention requires first that the effect of the language of the court's order be considered. It would appear on the face of the order to be a satisfaction of the judgment. The order, however, cannot have that effect. It is settled that the satisfaction of judgments is circumscribed by rule and statute. Only by compliance with those rules and statutes can a judgment be satisfied. In short, they require release on the margin of the record by the judgment creditor which does not appear. Hardin v. Hardin and Central States Steel, Inc., 512 S.W.2d 851 (Mo.App.1974), so holds and explicates the various procedures to procure the release of a judgment, none of which were followed in this case. If the plaintiff county had, at the time of the court's order, felt that the judgment was satisfied and that it should be marginally released and defendant had failed to do so, the statute permits the circuit court, on application and notice, to order the clerk to enter the necessary marginal release. Section 511.620 RSMo 1969, V.A.M.S. Plaintiff county does not claim that there was accord and satisfaction or any intent on the part of the defendant to satisfy the judgment. Both parties concede that the payment by the county into the register of the court and the withdrawal by plaintiff are part of a practice to avoid imposition of interest.

The second issue to be met is whether this withdrawal by the defendant constitutes such a tender and acceptance of the sum due to estop the defendant from pursuing his appeal. The authority proffered in support by plaintiff holds that one in whose favor a judgment is rendered cannot execute that judgment and still appeal from it. Noah v. German Ins. Co., 78 Mo.App. 370 (1899); Central Surety & Ins. Corp. v. New Amsterdam Casualty Co., 216 S.W.2d 527 (Mo.App.1948).

There can be no question as to the authority of these cases in ordinary litigation. Proceedings in condemnation, however, are based on constitutional right. Article I, Section 26, Constitution of Missouri, V.A.M.S. The Constitution and the statutes implementing it make condemnation proceedings sui generis, particularly in the area of the withdrawal of funds from the register of the court. Arkansas-Missouri Power Co. v. Hamlin, 288 S.W.2d 14 (Mo.App.1956). Chapter 523 RSMo 1969, V.A.M.S., governing these proceedings, clearly permits the withdrawal of the award of the commissioners. What is really in dispute here is the effect of the withdrawal of the difference between the award of the commissioners and the jury verdict plus the interest to the date upon which the amount was paid into court. This withdrawal was made after verdict and while the appeal was pending so that the entire issue relates to the post-verdict period.

A review of the case law and statutory provisions respecting interest and payment of the amounts due to owners in condemnation cases may serve to focus the legal issue presented by plaintiff county's contention.

Prior to the enactment of Section 523.045 RSMo 1969, V.A.M.S., the issue of the payment of interest in condemnation cases was extensively litigated. Arkansas-Missouri Power Company v. Hamlin, supra, in an extensive review of the case law and reasoning of the courts in the area of interest on condemnation awards, held that the landowner was entitled to such interest. The court reasoned that interest in compensation cases is not interest eo nomine, but is a 'means of measuring the value of the deprivation of the use of the property, and because it is a part and element of the just compensation required by constitutional provisions, which are self-enforcing, entirely independent of statute; for when no other method is at hand to determine the landowner's loss for the interim period, its allowance as an element of the just compensation is held necessary to preserve the constitutionality of statutory procedures which do not of themselves provide a way for compensating the owner for the period he is kept out of owner's possession without full payment.' Arkansas-Missouri Power Company v. Hamlin, supra, l.c. 17.

Despite the landowner's apparent victory in persuading the court to hold that interest should be allowed, the court denied him recovery of the interest because of a failure to request from the trial court the imposition of the interest.

Thereafter, in State ex rel. Highway Commission v. Galloway, 292 S.W.2d 904 (Mo.App.1956), the Springfield Court of Appeals refused to permit interest to be assessed on a judgment which had become final by a separate motion to assess. Deeming the question to be of general interest, the case was transferred to the Supreme Court, and in an opinion, State ex rel. Highway Commission v. Galloway, 300 S.W.2d 480 (Mo.1957), the Supreme Court held that the method of assessment by separate motion was improper on the facts of the case, but affirmed the holding of the Hamlin case as to the right to interest.

Thereafter, the Supreme Court, in State ex rel. Highway Commission v. Green, 305 S.W.2d 688 (Mo.1957), specifically denied to the trial court power to add interest to a jury verdict and overruled Hamlin and Galloway to the extent they indicated such a power existed to add interest to a condemnation verdict. The Green court concluded that only by legislative enactment could the necessary power be vested in the trial court.

In St. Louis Housing Authority v. Magafas, 324 S.W.2d 697 (Mo.1959), the Supreme Court approved the payment of interest against the specific contention that there was no statutory or constitutional authority supporting such a recovery. There was no procedural difficulty in that case since the claim for interest was presented before trial, and the case was tried to the court obviating the question of an additur to a jury verdict.

Following Magafas, the Supreme Court approved the imposition of interest by a jury from the date of taking to the date of jury verdict in City of St. Louis v. Vasquez, 341 S.W.2d 839 (Mo.1961).

This case law then established prior to the enactment of Section 523.045 RSMo 1969, V.A.M.S., (Senate Bill 248, Laws, 1959) a right to the payment of 'interest' to an owner for the period of time when he was ousted from possession and title and had not received the compensation constitutionally required. Soon after the enactment of the statute, the issue arose as to the retroactive application of the statute and, in State ex rel. State Highway Comm'n v. Ellis, 382 S.W.2d 225 (Mo.App.1964), the claim that the statute was 'substantive' and could not be applied retroactively was rejected on the ground that the right to interest existed prior to the enactment of the statute and that the statute merely eliminated the procedural difficulties relating to its imposition on the award.

The importance of the foregoing case law establishing the right to 'interest,' or as it is sometimes called, damages for delay in payment, to the instant issue lies in the reasoning of the courts. All of the case law proceeds on the assumption that as a matter of constitutional right, the defendant is entitled to payment upon the condemnor's right to possession and title and that, therefore, any delay in such payment likewise entitles him to the 'interest.' Thus, the plaintiff county's payment made to the Clerk of the court to avoid imposition of further 'interest' cannot have that effect unless immediately available to the defendant landowner. To hold otherwise would be violence to the reasoning and holdings of the cases set forth on the subject of interest.

The underlying argument of the plaintiff county that withdrawal of the amount paid into court is almost squarely answered by the court in Mayor, Councilmen, etc., of City of Liberty v. Boggess, 332 S.W.2d 305 (Mo.App.1960). There the City had condemned the...