Martin v. City of St. Louis
Decision Date | 25 May 1897 |
Citation | 139 Mo. 246,41 S.W. 231 |
Parties | MARTIN v. CITY OF ST. LOUIS. |
Court | Missouri Supreme Court |
Appeal from St. Louis circuit court.
Action by Joseph E. Martin, executor of Edward Martin, deceased, against the city of St. Louis. Judgment for plaintiff. Defendant appeals. Affirmed.
W. C. Marshall, for appellant. Jas. P. Maginn, for appellee.
This is an appeal by the city of St. Louis from a judgment of the circuit court of St. Louis in favor of Edward Martin, for $5,743.08, against said city, on May 29, 1894. Pending the appeal in this court, Mr. Edward Martin died, and, upon proper proceedings, the cause has been revived in the name of his executor. The judgment was rendered upon demurrer. The facts stand admitted, and are as follows:
The city of St. Louis, by its ordinance No. 15.439, approved February 14, 1890, established Tenth street, in said city, as a public highway, 60 feet wide, from Washington avenue to Christy avenue, the center line of said street to run 301 feet east of and parallel with Eleventh street, and authorized the city counselor to cause said Tenth street to be opened according to law. At said date, Edward Martin was the owner in fee of the said strip of ground, fronting 60 feet on Washington avenue, and running northwardly to Christy avenue, a depth of 225 feet, which ground, together with other ground adjoining it on the east and west (all vacant and unimproved), had been previously allotted to plaintiff by a final decree of the circuit court of the city of St. Louis, in partition proceedings, between plaintiff and Charles Green and others. From this decree an appeal was pending, taken by said Green, in the supreme court of Missouri, which appeal was dismissed by him on the 20th day of June, 1892, a bond having been given on said appeal in words and figures as follows, to wit:
Proceedings were begun by the city of St. Louis in the said circuit court on May 12, 1890, against Mr. Martin and said Green and others, pursuant to said ordinance, being cause No. 82,220 of said court, for the condemnation of said strip of ground, for the public use, as a public highway. Commissioners were duly appointed by said court, to assess the damages sustained by the owners of said strip, by the said condemnation thereof; and on April 4, 1891, they filed their report as commissioners on said cause in said court, and assessed said damages at the sum of $120,000; and thereupon the city of St. Louis was granted time until May 30, 1891, to report the action of the said commissioners to the municipal assembly for its approval or rejection, as required by law. On May 5, 1891, the said commissioners' report was, by resolution of the said assembly, approved, and its certificate of approval was filed in said cause on May 29, 1891; and thereupon a final judgment was entered by said court, vesting in the city of St. Louis the title to said strip for use as such public highway on condition, however, that said city should first pay over to the owners of said strip the amount of damages awarded by said commissioners, to wit, the sum of $120,000, which said final judgment is in words and figures as follows, to wit:
.
Thereafter a certified copy of said report was made and delivered by the clerk of the said circuit court to the comptroller of said city, and forthwith recorded by him, and a copy thereof furnished by him to the municipal assembly of said city on September 20, 1891; and thereafter said assembly, by its ordinance, approved October 23, 1891, appropriated the sum of $120,000 in favor of the owners of said strip, to pay said damages, and directed its auditor to draw his warrant in their favor. Edward Martin, the plaintiff in this action, thereupon demanded payment of the money due him by reason of the said judgment of condemnation; but the city declined to pay same, and avowed its intention to pay the money into court, because the ownership of said property was dependent on the aforesaid final decree in partition, from which an appeal as aforesaid was pending. Mr. Martin at the same time notified the defendant, through its comptroller and city counselor, that he was entitled to interest at 6 per cent. per annum on the award from the date of the judgment of condemnation. The city, however, refused to cause the said money, or any part thereof, to be tendered or paid to the parties entitled thereto, or into court for their use, as provided by its charter and ordinances, but retained the same in its possession until July 11, 1892, about one month subsequent to the dismissal by said Green of the said appeal in the supreme court. Mr. Martin, immediately upon the dismissal of the said appeal, to wit, on the 25th day of June, 1892, again demanded from the city, through its proper officers, the payment of the said award and interest thereon, and was put off until the said officers could satisfy themselves of the dismissal of said appeal. On or about July 8th, Mr. Martin again presented himself to the said officers, and requested payment of said award and interest. The comptroller, acting under the advice of the city counselor, to whom the demand was referred, declined to pay any interest; and thereupon Mr. Martin proposed that, instead of suing the city for the whole amount, he would take the principal sum of $120,000, without...
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