Martin v. The City St. Louis
| Decision Date | 25 May 1897 |
| Citation | 41 S.W. 231,139 Mo. 246 |
| Parties | Martin, Executor, v. The City of St. Louis, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court.
Affirmed.
W. C Marshall for appellant.
(1) In no event can the judgment be considered final so that interest can be calculated thereon earlier than the date of the passage of the appropriation ordinance by the city. The judgment of the circuit court was liable to become an absolute nullity in the event the municipal assembly failed to make the appropriation to pay the damages, and therefore the judgment of condemnation became a finality only when the appropriation bill passed. (2) On neither of these dates however, was plaintiff entitled to receive the money. Up to this time and until Green dismissed his appeal in the partition suit, plaintiff's right to this fund depended upon the result of the partition suit. The assessment of damages for the property taken was not in favor of plaintiff but all of the owners of the whole tract, being parties defendant, which might be plaintiff alone, or might be plaintiff, Green and all the other owners. In other words the city was not obliged to decide whether plaintiff, or Green or both, were the owners, but it had a right to condemn the property, no matter who owned it. If the city had paid the damages to plaintiff, and if the judgment in partition had been reversed by the Supreme Court on Green's appeal, and thereafter this particular piece had been allotted to Green or some of the other owners, instead of to plaintiff, the city would have been compelled to pay the amount over again to whomever the piece taken was finally allotted to. The amount involved is no small sum, and I know of no law that compels the city to risk the payment of such an amount to a person whose title can not be shown to be, and in this case was not, an indefeasible title. (3) Promptly after the final judgment the city made the appropriation and stood ready to pay the money. If Green, Martin and the other defendants had joined in a demand, the city would have made the payment immediately. But inasmuch as the title was in dispute, and the city could not determine who would ultimately become the owner of it, the city could not safely make the payment. (4) The great weight of authority is that interest does not begin to run until the city takes possession of the property. Railroad v. Cella, 42 Ark. 528; Young v. Harrison, 17 Ga. 30; Chicago v. Palmer, 93 Ill. 125; Railroad v. McClintock, 69 Ill. 296; Cook v. Park Commissioners, 61 Ill. 115; Hayes v. Railroad, 64 Iowa 733; Cohen v. Railroad, 34 Kan. 158; Railroad v. Owen, 8 Kan. 409; Railroad v. McComb, 60 Me. 290; Gay v. Gardiner, 54 Me. 477; Boles v. Boston, 136 Mass. 398; Chandler v. Jamaica Pond Aqueduct, 125 Mass. 544; Kidder v. Oxford, 116 Mass. 165; Reed v. Railroad, 105 Mass. 303; Whitman v. Railroad, 89 Mass. (7 Allen) 313; Minneapolis v. Wilkin, 30 Minn. 145; Knauft v. Railroad, 22 Minn. 173; Warren v. Railroad, 21 Minn. 424. (5) Other cases may be found holding that interest should be computed from the date of the judgment, and others that it should be computed from the date of the appropriation, the amount thereof to be reduced by the beneficial value of the possession to the owner until entry is made, but such cases will not bear the test of reason or logic. Especially is this the fact, when the city stands ready to pay the judgment, and the plaintiff or some third person causes a delay by an appeal, over which the city has no control. (6) This general statute in reference to interest on judgments can have no proper application to summary, special proceedings like condemnation proceedings, which are essentially different in form and procedure from the whole of the practice act of the State, and as to which a complete system has been established by the charter of the city, and this system does not provide for interest on a judgment. (7) Interest is of two kinds. First, a sum agreed expressly, or impliedly, to be paid by one person to another for the use of a specified sum of money for a designated time; or, second, a penalty which the law imposes on a debtor for a failure to pay a sum due as and when it is due. This case does not come under the first designation, neither can it be brought within the second designation for the city always stood ready to pay the principal from the moment the appropriation bill was passed.
James P. Maginn for respondent.
(1) The circuit court rightly overruled defendant's demurrer. R. S. 1889, sec. 5974; Plum v. City of Kansas, 101 Mo. 525; Webster v. Railroad, 116 Mo. 114; Snyder v. Cowan, 50 Mo.App. 430; Pennsylvania S. V. Co. v. Ziemer, 124 Pa. St. 560; H. B. v. Co. Commes, 103 Mass. 120; Mills, Eminent Domain [2 Ed.], secs. 175, 176, 177; Parks v. Boston, 15 Pick. 198; Weiss v. Borough, etc., 136 Pa. St. 294. (2) Interest runs from the time when the right to take is complete in the condemning party. United States v. Engeman, 46 F. 898; Old Colony v. Miller, 125 Mass. 1; Edwards v. Boston, 108 Mass. 535. Under the authority of Plum v. Kansas City, supra, it seems clear that interest should be computed from May 29, 1891, upon the commissioner's award. (3) It rests with the city to avoid the judgment by failure to appropriate, or, if it adopt and ratify the judgment and take the property, it must pay for it as of the date of the judgment; or the city may avail itself, if disposed, of the full term granted, but when it comes to pay it must pay with interest. This seems to me the only fair, equitable and sensible interpretation. Otherwise the city might, in many cases, as in the present case, after final judgment, and its solemn resolution confirming the award and thereby producing said judgment divesting the owner of his property, keep him out of his property and its value for nearly two years without any compensation, a view which is so utterly unreasonable that it can not have been intended by the lawmakers and which is violently opposed to the constitutional theory of just compensation. (4) The pendency of the appeal in the partition suit of Martin v. Green was immaterial. It was the duty of the city to pay the money into court for the owners when ultimately ascertained. R. S. 1889, sec. 11, p. 2122; Hilton v. St. Louis, 99 Mo. 199. Had it done so, the plaintiff, the true owner, as he at all times was, though only finally judicially so declared by the dismissal of Green's appeal, could have readily had the money, under order of the court, securely invested at interest, pending the appeal. (5) It is an equally novel proposition, that Mr. Green and his bondsmen should pay the interest to plaintiff, on the theory that the wrongful appeal prevented the city from paying the money to the true owner. Why did not the city pay into court for the use of the owners? Mr. Green's appeal did not prevent that in any way.
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 number 15439, approved February 14, 1890, established Tenth street in said city as a public highway sixty feet wide from Washington avenue to Christy avenue, the center line of said street to run three hundred and one 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 sixty feet on Washington avenue and running northwardly to Christy avenue a depth of two hundred and twenty-five 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 twentieth day of June, 1892. A bond having been given on said appeal in words and figures as follows, to wit:
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