State ex rel. Dean v. Douglas

• Court: Missouri Court of Appeals
• Writing for the Court: ANDERSON, J.--
• Citation: State ex rel. Dean v. Douglas, 236 Mo.App. 1284, 165 S.W.2d 304 (Mo. App. 1942)
• Decision Date: 04 November 1942
• Parties: STATE OF MISSOURI EX REL. HAZEL DEAN, RELATOR, v. HONORABLE RAYMOND O. DOUGLAS, AS CIRCUIT CLERK OF ST. LOUIS COUNTY, MISSOURI, RESPONDENT

165 S.W.2d 304

236 Mo.App. 1284

STATE OF MISSOURI EX REL. HAZEL DEAN, RELATOR, v. HONORABLE RAYMOND O. DOUGLAS, AS CIRCUIT CLERK OF ST. LOUIS COUNTY, MISSOURI, RESPONDENT

Court of Appeals of Missouri, St. Louis

November 4, 1942

Motion for Rehearing Overruled November 17, 1942.

Peremptory writ issued.

Jesse L. England for relator.

The appeal of defendants Robert A. Glenn et al., without bond did not operate as a supersedeas; it did not operate to stay the enforcement of the judgment in favor of relator whereby it was ordered and adjudged that relator be allowed and paid the sum of $ 1000 as her proportionate share of the fund paid into court by the plaintiff in the condemnation proceeding. Section 1188, R. S. Mo. 1939; State ex rel. Tuemler v Goldstein, 209 Mo.App. 102, 237 S.W. 814. The respondent clerk is a mere custodian of the fund ordered to be paid over to relator, and is not clothed with discretion to ignore the statutes by withholding such fund after having been ordered and commanded to pay the same to relator. The payment over of the award is purely a ministerial act, one which a public officer is required to perform in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning the propriety or impropriety of the act to be performed. State ex rel. North & South Ry. Co. v Meyer, 143 Mo. 439, 448, 45 S.W. 306, 308. A mandamus proceeding is purely an action at law. State ex rel First National Bank v. Bourne, 151 Mo.App. 104, 125, 131 S.W. 896, 902. Respondent attempts to defend against complying with an order of a court having undoubted jurisdiction on the ground that he might become liable to somebody should there be a reversal on appeal without bond. That a clerk of a court is protected in complying with such an order has been declared to be the law by the Supreme Court in Lucas v. Central Missouri Trust Co., 162 S.W.2d 569, 577.

Herbert Ziercher for respondent.

In State ex rel. Tuemler v. Goldstein, 209 Mo.App. 102, 237 S.W. 814, relied upon by relator, the court below found and adjudged that the interpleader, Mary L. Tuemler, relator, was entitled to the entire fund paid over to the clerk. The interplea of relator in this cause is based on a vastly different state of facts. There was an award by the commissioners in condemnation, insofar as concerns the property upon which relator alleges a leasehold interest at the time of condemnation, in the sum of $ 9280. There are but two claimants to any part of this fund; one is relator who claims an interest therein by reason of having a ground rental arrangement with the Public Service Company which was vested with a life estate in said property, but, by stipulation, voluntarily relinquished its right to participate in the distribution of the award in favor of the owners of the fee; the other is Robert Glenn who claims the same as owner of the fee simple title to the tract condemned. The motion of defendant Robert Glenn for payment of the award is still pending, and the total sum of $ 9280, together with other funds, is still deposited in the registry of the court. Respondent contends that under such circumstances he cannot pay out the sum of $ 1000 for which demand has been made by relator until such time as relator's claim has been finally adjudicated by a court of last resort without imperiling himself to personal liability, and further contends that the entire award of $ 9280, under the circumstances, creates a supersedeas on the appeal of Robert Glenn and others from the ruling of the court on relator's interplea. State ex rel. Hamilton v. Guinotte, 156 Mo. 513, 57 S.W. 281; State ex rel. and to use of Pennsylvania Fire Insurance Co. et al., v. Sevier, 102 S.W.2d 882. Section 1188, R. S. Mo. 1939, does not use the word "supersedeas" but states that "such allowance (of an appeal as prayed) shall stay the execution" in certain cases. The Legislature meant that the appeal should act as a supersedeas in all cases, except those mentioned in Section 1188, which are enforced by execution. Linck v. Troll, 84 Mo.App. 49, 55. Section 1184, R. S. Mo. 1939, was meant to apply to all appeals and all judgments or special orders after judgment which could be appealed, while Section 1188, R. S. Mo. 1939, applies only to those judgments enforceable by execution.

ANDERSON, J. Hughes, P. J., and McCullen, J., concur.

OPINION

Original proceeding in mandamus.

ANDERSON, J.--

This is an original proceeding in mandamus to compel the respondent, as clerk of the Circuit Court of St. Louis County, to pay over to relator, out of a fund or deposit held by said clerk in a condemnation suit, the sum of $ 1000 found by the court to be due relator.

The undisputed facts as disclosed by the petition for the writ and return thereto are as follows:

At the September Term, 1941, of the Circuit Court of St. Louis County, the City of Ladue filed an action to condemn several parcels of land formerly owned by Campbell Glenn, deceased.

The property involved in the suit had been devised by will to Sarah Glenn for life with remainder to her heirs at law. After the death of Campbell Glenn, Sarah Glenn conveyed her life estate in said property to the United Railways of St. Louis, a corporation, by a deed dated December 5, 1899, and title to said life estate in said property is now held by mesne conveyances in the name of the St. Louis Public Service Company, a corporation.

Plaintiff named as parties defendant to said suit the said Sarah Glenn and the St. Louis Public Service Company, as well as certain individuals, apparently the owners of a contingent remainder in said land, listed as Robert A. Glenn, Robert C. Glenn, Robert Joseph Glenn, Jane Glenn Shubert, and Lester Shubert. Plaintiff also named as party defendant relator herein, a lessee of the premises under lease from the St. Louis Public Service Company.

Commissioners were appointed in said suit in accordance with the statutes in such cases made and provided to assess the damages to the owners. Their report, filed November 14, 1941, awarded damages for the taking of all of said land in the total amount of $ 21,300, but did not allocate the damages as between the defendants. As to the parcel on which relator's buildings are located, the award was in the lump sum of $ 9280. The plaintiff thereafter paid into the registry of the court said $ 21,300.

Thereafter a stipulation was entered into by and between defendant St. Louis Public Service Company on the one hand and the defendants, Sarah Glenn, Robert A. Glenn, Robert C. Glenn, Robert Joseph Glenn, and Jane Glenn Shubert on the other, that the defendant Sarah Glenn should receive out of the award the sum of $ 11,500; that defendant St. Louis Public Service Company should have and receive the sum of $ 300 on account of the taking of that portion of said land in which it owned a life estate; and that the remainder of said total award, $ 9500, should be paid to defendant Robert A. Glenn, subject to the provisions of the will of Campbell Glenn, deceased.

Thereupon defendant Robert A. Glenn filed a motion in said cause, to which he attached said stipulation, and in which he prayed that the court enter its order directing the clerk of said court to pay out the award in accordance with the said stipulation, after determining the sum, if any, that Hazel Dean, relator herein, was entitled to receive.

Thereafter, on orders made pursuant to this stipulation, and upon the uncontested motion of Sarah Glenn, $ 11,500 of the fund was paid to Sarah Glenn, and $ 300 was paid to the St. Louis Public Service Company, leaving the sum of $ 9500 in the registry of the court to be disbursed to the parties entitled thereto.

Thereupon defendant Hazel Dean, relator herein, filed an interplea in which she alleged that in the year 1927 she caused to be erected on the premises a certain frame structure, thirty-two feet by thirty-two feet, which she used as a restaurant and waiting room for patrons of the defendant St. Louis Public Service Company, and that she owned on said premises another building fifteen feet by fifteen feet, which she used as a storeroom in connection with the operation of said larger building, and that the reasonable value of said buildings at the time of the filing of the plaintiff's petition was the sum of $ 2000. She further averred that she had enjoyed a large lucrative business which she would have continued to enjoy but for the condemnation of her said buildings by the plaintiff in said suit. The prayer of her interplea asked that the court hear evidence and award to each defendant such sum as the court should find fair and reasonable as compensation for the property condemned, and that the court make an appropriate order touching the distribution of said award.

The defendants Robert A. Glenn, Robert C. Glenn, Robert J. Glenn, Jane Glenn Shubert, and Lester Shubert filed their joint answer to said interplea, in which answer they admitted that the property upon which Hazel Dean, relator herein, operated a restaurant, under lease from the St. Louis Public Service Company, was appraised by commissioners appointed by the court, and that said commissioners made an award in the sum of $ 9280, as damages for the taking of the property sought to be condemned by plaintiff, which said award was for the property alleged to have been leased by said defendant Hazel Dean, together with other property. Said answer also contained a general denial.

A trial was had on the issues raised by said interplea and answer and resulted in a finding in favor of interpleader, Hazel Dean, relator herein, and the assessment of her damages in the sum of $ 1350. The court thereupon ordered that said interpleader Hazel Dean be allowed and paid the sum of $ 1350 as...