McManus v. Burrows

• Decision Date: 22 December 1919
• Docket Number: No. 19787.,19787.
• Citation: 217 S.W. 512,280 Mo. 327
• Parties: McMANUS v. BURROWS et al. In re GERHART.
• Court: Missouri Supreme Court

217 S.W. 512

280 Mo. 327

McMANUS v. BURROWS et al.

In re GERHART.

No. 19787.

Supreme Court of Missouri, En Banc.

December 22, 1919.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

Action by Thomas Ward McManus against Camilla S. W. Burrows and another. From an order overruling a motion to quash an execution in favor of Frank H. Gerhart, plaintiff appeals. Appeal transferred to Court of Appeals.

See, also, 191 Mo. App. 594, 177 S. W. 671 T. J. Rowe, Thos. J. Rowe, Jr., and Henry Rowe, all of St. Louis, for appellant.

Marion C. Early, of St. Louis, for respondent.

GOODE, J.

The appellant took this appeal from an order of the court below, overruling a motion to recall and quash an execution issued on the judgment in the case of Thomas Ward McManus (the appellant) against Camilla S. W. Burrows and Matthew Park, trustee. Several executions were issued at different times on that judgment. The one involved in the present appeal is for interest claimed on an allowance of fees to the commissioners appointed to partition property among the parties to the aforesaid cause, in accordance with the judgment therein given. The judgment found that McManus was entitled to a half interest in the property, Camilla S. W. Burrows to a one-sixth interest, Matthew Park, trustee, to a one-third interest, and ordered a division accordingly. Henry C. Grenner, Charles Z. Trembley, and Frank H. Gerhart were appointed commissioners, and for their services, after their report had been filed, the court, on June 23, 1908, in confirming the report and rendering a final decree, allowed each of them $5,000. Other items of costs, including fees of attorneys, stenographer's charges, those of a surveyor, and fees of the marshal and clerk of the court, etc., were allowed by the judgment and as part of it. Every item of the costs appears to have been paid in full by the parties to the litigation, according to their respective liabilities, except the interest on that portion of the compensation of the commissioners adjudged against appellant McManus. On December 24, 1913, McManus paid half of the other costs and half of the face of the amount awarded the three commissioners, but refused to pay the interest claimed to have accrued since the rendition of the judgment on the other half, and pending an appeal taken by him from an order overruling a motion to quash a prior execution, viz., No. 94. Grenner and Gerhart are the claimants of interest, Trembley, the other commissioner, having acknowledged satisfaction in full of the allowance to him. A previous execution (No. 114) to test the right to interest was issued at the instance of Grenner, which was followed by a motion to quash by McManus. The motion having been overruled, he appealed to the St. Louis Court of Appeals, where the ruling of the circuit court was sustained and the applicable statutes construed to require interest on the allowances to the commissioners. 191 Mo. App. 594, 177 S. W. 671. Subsequently, the execution involved herein (No. 52) was issued at the instance of Gerhart, to collect the interest, and McManus filed a motion to quash it too, assigning, among other reasons for the motion, that the enforcement of the execution would violate the fourteenth amendment to the Constitution of the United States, by depriving him of his property without due process of law and by denying him the equal protection of the law; would violate section 30 of article 2 of the Constitution of Missouri, by depriving him of his property without due process; and for the further reason that the circuit court was without jurisdiction to allow the commissioners $5,000 for their services, and in so doing violated said constitutional provisions and also section 2578 of the Revised Statutes, 1909, of this state. The motion having been overruled, an appeal was granted to this court.

The question for first attention is whether the jurisdiction of the appeal is here or in the St. Louis Court of Appeals; and this question depends on whether or not, to rule on the motion to quash the execution, it was necessary to construe either the national or the state Constitution to ascertain whether the collection, by execution, of interest on the allowances to the commissioners, would deprive appellant of his property without due process of law or deny him the equal protection of the law. That the judgment for compensation to the commissioners was unconstitutional has not been urged; neither has the validity of the statutes authorizing such a judgment been denied. R. S. 1909, §§ 2279, 2588. The contention is that to enforce payment of the fees allowed would violate said constitutional provisions. But we think the question of the right to interest, although asserted to require, in order to answer it, a construction of the federal and the state Constitutions, in truth requires no more' than the construction of some sections of our statutes. Interest is never allowed at common law in the absence of a stipulation or a commercial usage, to pay it; so the position of appellant is this: The remuneration allowed commissioners is part of the costs of an action of partition, to be taxed proportionally against the parties, like the other costs, and court costs bear no interest, as neither the common law nor any statute provides they shall.

For respondent it is contended the statutes direct a judgment for costs in partition cases against the parties according to their respective interests in the property to be divided, expressly authorize an execution for the costs thus adjudged, and money due on any judgment or order of court draws interest from the date of rendition. The sections of the statutes cited by the parties in support of their respective contentions, are 2279 and 2578, the first of which provides for a judgment and execution for costs in partition cases, and the second for an allowance of compensation to commissioners also, section 7181, which declares interest shall be allowed on all money due on any judgment or order of court, from its date.

It is plain from the statement of the theories of the parties that the solution of their controversy turns exclusively on the meaning of the statutes supra, considered in connection with the doctrine of the common law refusing interest as a general rule. It should be noted that the judgment for partition in this case said nothing about interest on the fees allowed the commissioners, or on any of the other items of costs. A judgment for the costs in such cases is expressly directed by section 2279, and whether commissioners' allowances are costs, and, if so, whether they bear interest, are in no sense constitutional questions, but simply questions of the construction of pertinent statutes, namely, those cited. The conclusion that interest runs on allowances is derived, as said above, by construing section 2279, which authorizes judgment and execution for costs in suits to partition, with section...