Roach v. Landis

• Decision Date: 05 December 1927
• Docket Number: No. 16108.,16108.
• Citation: 1 S.W.2d 203
• Parties: ROACH v. LANDIS.
• Court: Missouri Court of Appeals

1 S.W.2d 203

ROACH v. LANDIS.

No. 16108.

Kansas City Court of Appeals. Missouri.

December 5, 1927.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Suit by Dora Roach against John C. Landis, Jr. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Landis & Duncan and John C. Landis, III, all of St. Joseph, for appellant.

Sterling P. Reynolds, of St. Joseph, for respondent.

WILLIAMS, C.

The controversy, as shown by this record, is over the money allowed in a condemnation proceeding by the city of St. Joseph, Mo., against land claimed by both the plaintiff and the defendant.

Condemnation proceedings for a part of the property was instituted in the circuit court of Buchanan county in 1923. Plaintiff and defendant were both made parties to the proceedings, and were served with process. Two commissioners were appointed, the award of the first was set aside, and the second awarded $500 as the value of the north one-half of lot 3, block 3, Noble tract.

The property taken for street purposes was valued at $500. The remainder of the tract was found to have been damaged in the sum of $100. The city of St. Joseph is a city of the first class, governed by provision of article 2, c. 72, Revised Statutes 1919, relating to lating to charters of cities of the first class.

The award of the commissioner was approved by the circuit court. The money was appropriated and paid into the office of the circuit court for the owners of the various pieces of land. It seems that the defendant, John C. Landis, Jr., did not appear at the condemnation proceedings. The report of the commissioners showed that the property was owned, or claimed, by Dora Roach. Within about six weeks after the report was confirmed, John C. Landis, Jr., the defendant herein, filed a petition setting up his claim of ownership and praying that the money allowed by the commissioners be paid to him. No action seems to have been taken upon this petition. On November 24, 1925, the clerk of the circuit court paid to defendant the money awarded by the commissioners, to wit, $600. On December 17, 1926, plaintiff filed a petition in two counts against this defendant The first count is in ejectment. As this count was dismissed, it need not be noticed further.

Defendant answered the first count denying the allegations generally, and alleging that he has been the owner since November 8, 1926, under and by virtue of a certain tax deed, and prays the court to hear and determine the title to said property and decree that defendant have a fee-simple title to the property therein described.

The second count of plaintiff's petition recites that in the year 1923 the city of St. Joseph condemned certain real estate and a judgment was rendered in favor of plaintiff in the sum of $600, that without warrant of law the money was paid to this defendant, and plaintiff asks judgment against him for the sum of $600.

Defendant answering the second count asks that the award to Dora Roach be changed to defendant herein, who, it is alleged, is the owner of the property and entitled to the proceeds thereof, and further alleges laches on the part of plaintiff.

At the close of the testimony, plaintiff dismissed her first count, whereupon the court instructed the jury to find for the plaintiff on the second count in the sum of $600. The jury returned a verdict in conformity with the direction of the court. There was no ruling upon the answer to the first count. After an unsuccessful motion for a new trial, defendant brings the case here on appeal.

The case is presented here upon the theory that the court did not determine the title to the land as prayed in the answer of the first count of the petition, but proceeded on the theory that a dismissal of the first count carried with it the dismissal of the answer to that count.

The first question presented is whether or not a dismissal of the first count of the petition had the effect of dismissing defendant's answer to said count in which answer it is prayed that the title be quieted.

It was held in Gray v. Ward, 234 Mo. 291, 136 S. W. 405, that the dismissing of the petition carried with it the dismissal of the answer, unless that answer was a set-off or counterclaim. It was further held that an answer setting up claim to real estate was neither a counterclaim nor a set-off.

The judgment in Gray v. Ward, supra, was rendered in 1906 or 1907, as pointed out by the Supreme Court in the case of State ex rel. v. McQuillin, 246 Mo. 517, loc. cit. 537, 152 S. W. 347. It is further pointed out in State ex rel. v. McQuillin, supra, that the law was changed between the time of the origin of Gray v. Ward, supra, and State ex rel. v. McQuillin, supra. As we find the law now under the amendment of 1909 (Laws 1909, p. 343), a dismissal of plaintiff of his petition does not dismiss an answer in which an adjudication of the title to the real estate would be proper relief. In this case it is necessary to determine the title to the real estate before we can determine where the money goes.

The case of Graves v. Chapman et al., 248 Mo. 83, 154 S. W. 61, decided in 1913, seems to be directly in point as supporting authority; also the later case of Adams v. Cary (Mo. Sup.) 226 S. W. 833.

The next question presented is whether or not the finding of the commissioners as to the ownership of land taken or damages in a condemnation proceeding, which report is in due time affirmed by the circuit court, is an adjudication of the title. This question...