State ex rel. Mississippi County v. Stallings, 53305

• Decision Date: 09 December 1968
• Docket Number: No. 53305,No. 1,53305,1
• Parties: The STATE of Missouri ex rel. The COUNTY OF MISSISSIPPI, Respondent, v. James Albert STALLINGS, Jr., and Helen Alene Stallings, Appellants
• Court: Missouri Supreme Court

Page 588

434 S.W.2d 588

The STATE of Missouri ex rel. The COUNTY OF MISSISSIPPI, Respondent, v. James Albert STALLINGS, Jr., and Helen Alene Stallings, Appellants.

No. 53305.

Supreme Court of Missouri, Division No. 1.

Dec. 9, 1968.

Roderic R. Ashby, Charleston, for respondent.

Dwight Crader, Sikeston, for appellants.

STORCKMAN, Judge.

The plaintiff, Mississippi County, undertook to condemn a strip of land 15 feet wide and 2020 feet long for public road purposes. The petition, filed July 18, 1966, described the land as beginning 'at the southwest corner of the Northwest Quarter' of the designated section and 'running thence East 15 feet; thence North 2020 feet; thence West 15 feet; thence South 2020 feet to the point of beginning and containing, .47 acres, more or less.'

On September 26, 1966, the court made findings and rendered judgment 'that the lands, property and rights be and stand condemned for the uses and purposes set out in the petition'. At the same time the court appointed three commissioners to assess the damages by reason of the appropriation. Neither the judgment of condemnation nor the order appointing the commissioners described the land other than by reference to the petition.

The commissioners qualified and on October 11, 1966, filed their report wherein they assessed defendants' net damages at $900. The report recited that all three commissioners 'viewed the property to be condemned together; that they examined the description while viewing the property'. As required by S.Ct. Rule 86.06, V.A.M.R., the commissioners' report contained 'a separate description of the property for which the damages are assessed'. This description was exactly the same as that set out in the petition. No exceptions were filed. The defendants filed a motion for distribution of the damage award which had been paid into the registry of the court. The motion was sustained and on November 2, 1966, the sum of $900 was ordered distributed to the defendant-land-owners and their attorney.

Over five months later, on April 13, 1967, the plaintiff filed its motion 'TO CURE AN IMPERFECTION IN JUDGMENT' reading as follows:

'Comes now the Relator and moves the Court as follows:

'1. That the Judgment heretofore entered in this cause through mistake and misunderstanding of all the parties misdescribed the property taken.

'2. That the proper description which should have been in the judgment heretofore entered is as follows:

'A tract of land lying, being and situate in the County of Mississippi and State of Missouri, to-wit:

'A strip of land 15 feet wide and 2020 feet long east of and adjoining the east side of the county road right-of-way along the west side of the West Half of the Northwest Quarter of Section Thirty (30), Township Twenty-five (25) North, of Range Sixteen (16) East of the 5th principal meridian, more particularly described as follows, to-wit:

'Beginning at a point East of the Southwest corner of the Northwest Quarter of Section 30, Township 25, Range 16, at the edge of the existing road right-of-way, running thence East 15 feet, thence North 2020 feet; thence West 15 feet; thence South 2020 feet along the edge of the road right-of-way to the point of beginning and containing .47 acres, more or less.

'WHEREFORE, Relator prays that the Court amend its former Judgment by properly correcting and redescribing the land in its Judgment. Relator further requests that the Court enter such other and further orders necessary to grant full relief in the premises.'

The defendants filed a motion to strike plaintiff's motion on the grounds (1) that the motion describes other and different land than that actually taken in the condemnation proceedings and described in the plaintiff's petition and the report of the commissioners and is a nullity, (2) that the plaintiff's motion improperly attempts to amend the description of the land by adding different and additional land and by substantially changing issues and prejudicing the rights of the defendants, (3) that the motion and any proceedings thereon are void because they fail to comply with statutory requirements and supreme court rules pertaining to condemnation cases, and (4) that the motion does not set forth facts sufficient to constitute grounds of relief.

The matter was taken up and submitted to the court without the hearing of any evidence. On August 8, 1967, the court overruled the defendants' motion to strike the plaintiff's motion and further ordered and ruled as follows:

'2. Sustains the motion of the plaintiff to cure an imperfection in judgment herein and finds that plaintiff was in error and through mistake and misunderstanding improperly described the property to be condemned and that by permitting the plaintiff to correct its error the defendants are not denied any of their rights and that the property viewed by the commissioners and for which the plaintiff deposited the commissioners award was in accordance with description as corrected and that the defendants have drawn down the money so deposited by the plaintiff, and it is therefore hereby ordered that the petition and the judgment herein be corrected to read as follows:

'(The land description as set out above in plaintiff's motion to cure imperfection is omitted here to avoid unnecessary repetition.)

'WHEREFORE, it is hereby ordered that the petition herein and the judgment be corrected, in accordance with the motion of the plaintiff to read as follows:

'(The land description as set out above in plaintiff's motion to cure imperfection is omitted here to avoid unnecessary repetition.)

'IT IS FURTHER ORDERED that plaintiff be put in immediate possession of the above described premises.

'IT IS FURTHER ORDERED that the costs of these proceedings be taxed against the plaintiff.'

The defendants have appealed from the judgment entered pursuant to the plaintiff's 'MOTION TO CURE AN IMPERFECTION IN JUDGMENT'. No evidence was taken at any stage of the condemnation case. Nor is there any stipulation or agreement with respect to the facts. During oral argument, counsel for both parties went outside the record, but even then the factual background is incomplete, uncertain and not dependable. Perforce, we must base our decision on the pleadings, reports, orders and judgments shown by the transcript--the material parts of which are set out above.

The plaintiff contends that the alleged mistake in the first judgment may be corrected under the rules and statutes relating to jeofails in that such mistake is one of the specified kinds of imperfection for which a judgment will not be reversed, impaired or in any way affected. Sections 511.260 and 511.270, RSMo 1959, V.A.M.S.; S.Ct. Rules 74.30 and 74.31, V.A.M.R. Item 10 of § 511.260 and Rule 74.30 deal in a limited way with a mistake 'in any description of any property'.

Both the petition in condemnation and the report of the commissioners are required by supreme court rule and statute to set forth a description of the property or right which the condemnor seeks to acquire, use, or extinguish. S.Ct. Rules 86.04 and 86.06, §§ 523.010 and 523.040. A condemnor must describe the land and rights sought with such particularity that the owner can without too much difficulty ascertain exactly what is being taken. State ex rel. Morton v. Allison, Mo., 365 S.W.2d 563, 564(2).

It should also be noted that the application of Rule 74.30(10), relied on by plaintiff, is limited to a mistake in the description where the 'description shall have been once rightly alleged in any of the pleadings or proceedings'. See also § 511.260(10). Furthermore, Rule 74.31 provides: 'The omissions, imperfections, defects and variances enumerated in Rule 74.30, and all others of a like nature, not being against the right and justice of the matter of the suit, and not altering the issues between the parties on the trial, shall be supplied and amended by the court where the judgment shall be given, or by the court into which such judgment shall be...