State ex rel. Grand Avenue Railway Co. v. Wood
| Decision Date | 14 December 1897 |
| Parties | State ex rel. Grand Avenue Railway Company, Relator, v. Wood, Judge |
| Court | Missouri Supreme Court |
Writ denied.
Judson & Taussig for relator.
(1) In so far as the decree affirmed relator's right to the use of the tracks and to their maintenance, and prescribed the conditions of such user, it did not, in the legal sense command anything affirmative to be done by the defendant and was therefore self-enforcing and not superseded. Aliter, as to the money judgment, the enforcement of which was superseded. Railroad v. Railroad, 105 . 562; Railroad v. Railroad, 132 Mo. 47; State ex rel v. Dillon, 96 Mo. 57. (2) The right to use the tracks in the performance of its franchise duties being vested in the relator under the ordinance prior to the decree of the circuit court, the decree operated only to restrain the defendant from interfering with that right, and the court was bound to protect relator from interference. State ex rel v. Woodson, 128 Mo. 497. (3) A court of equity has jurisdiction, even after appeal, to carry into effect its own orders, decrees and judgments in so far as they are not superseded. Root v. Roolworth, 150 U.S. 410; Kershaw v. Thompson, 4 Johns. Ch. 610; Story, Eq Jur., sec. 959; Terrill v. Allison, 21 Wall. 291. (4) The award of the commissioners was vacated by the decree of the circuit court, and after entry of decree the terms and conditions of relator's occupancy was fixed by that decree until reversed by the Supreme Court. See sections 1295 and 1296 of city ordinances of 1892. The procedure is radically distinct from this in condemnation cases, and Clark v. Railroad, 119 Mo. 357, is not applicable. Lewis v. Railroad, 59 Mo. 495; Railroad v. Atkinson, 17 Mo. 485; State ex rel. v. Woodson, 128 Mo. 497; Rodgers v. Hatch, 8 Nev. 39; Freeman on Judg., sec. 328.
Smith P. Galt for respondent.
(1) The relator has a full and complete remedy by appeal from the order made by this respondent, which is set out in the petition and complained of, and which it is sought by this action to compel this respondent to change, and make another and different order therein. (2) Respondent's order made in the premises was in accordance with law, as has been held by this court in State ex rel. v. Lewis, 76 Mo. 370; State ex rel. v. Ransom, 86 Mo. 327; State ex rel. v. Hirzel, 137 Mo. 435; and State ex rel. v. Klein, 137 Mo. 673, as the bond of Citizen's Railway Company, approved by the court, and its appeal acted as a supersedeas and stay as to all matters contained in the judgment appealed from.
OPINION
In Banc.
Mandamus.
-- This is an application for an original writ of mandamus out of this court directed to the Honorable Horatio D. Wood, judge of division number 6 of the circuit court of the city of St. Louis, to command him to entertain an application made by relator for an order in the nature of a writ of assistance to enforce a certain judgment made by the said circuit court in the division over which respondent presides as one of the circuit judges of said city of St. Louis, on the seventh day of February, 1896, from which the defendant in said judgment, the Citizens' Railway Company, has appealed to this court. Said appeal is now pending in this court, and when it was taken defendant gave a supersedeas bond which was duly approved by said respondent as judge of said circuit court and a stay of execution ordered. The proceeding in which the judgment was obtained was conducted under certain ordinances of the city of St. Louis, numbered respectively 12,652 and 17,047, by virtue of which the said Grand Avenue Railway Company sought to avail itself of the right to run its street cars over and upon the street railway tracks of the defendant Citizens' Railway Company on Grand Avenue in said city between the intersection of Grand Avenue and the Natural Bridge Road and Easton Avenue. To obtain said right under said ordinance 12,652 the relator was required to and did file its petition with the mayor of said city of St. Louis praying for the appointment of commissioners to determine the amount of compensation which should be paid by relator to said Citizens' Railway Company for the use of said portion of its road. Said commissioners were appointed and made an award and filed the same with the mayor by which relator was required to pay said Citizens' Railway Company the annual sum of $ 15,480.90 in equal quarterly installments of $ 3,871.22 1/2 in advance and should include the pay of switchmen at the intersections of the two railways who should be under the direction of the Citizens' Railway Company, and said Citizens' Railway Company was permitted by said award to remain in control of its said tracks, and required to keep the said tracks in repair and renew the same when new tracks were required.
It further appears that relator made the first quarterly payment required by said commissioners and filed its bond for the payment of such additional compensation as should be ordered by the circuit court on any proceeding therein as provided by said ordinance and thereupon made its connections with said Citizens' tracks and has ever since and is now using said tracks in transporting passengers on its cars in said city. As allowed by said ordinance both of said companies appealed from said award to the circuit court of the city of St Louis, and said appeals were assigned to respondent's division of said court, and upon a hearing in said court the exceptions of the Citizens' Railway were overruled and the exceptions of the relator sustained and thereupon the compensation which relator should pay for the use of said tracks was readjusted and fixed, and provision made for renewing the said tracks and for the payment by relator of its part of the cost thereof, and a bond was required to be given by relator in the sum of $ 15,000 to secure payment of its part of the cost of said renewals and for substituting other bonds in lieu thereof. Among other things said judgment provided that: "The defendant company shall maintain, repair and renew the tracks, the track curves and paving to be used jointly at its own expense, renewals to be made whenever new tracks and other materials are required, the expense of such renewals to be paid as hereinbefore provided, and said defendant shall, at its own expense, pay for sanding, watering, salting, and keeping its said tracks clean." It is averred in the application to this court that since the entry of said judgment the said Citizens' Railway Company has refused to repair its tracks, that they are worn out so that an immediate renewal is demanded. That relator has been compelled to discontinue the use of its regular cars and to use small cars on said tracks, requiring transfers at Easton and Grand avenues; that it will soon be impossible to operate cars over said tracks. That on the fifth day of April, 1897, relator applied to respondent as judge of said circuit court for the enforcement of said decree in the protection of relator's right to the occupancy of said tracks and for the maintenance of the same. That respondent as judge of said court denied relator's motion and ruled that the supersedeas bond given by said Citizens' Railway Company and approved by said circuit court...
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