State ex rel. Missouri Pac. R. Co. v. Moss

• Citation: 531 S.W.2d 82
• Decision Date: 09 December 1975
• Docket Number: No. 36432,36432
• Parties: STATE of Missouri ex rel. MISSOURI PACIFIC RAILROAD COMPANY, Relator, v. Hon. Herbert K. MOSS, Circuit Judge, Jefferson County, Missouri, Respondent. . Louis District, En Banc
• Court: Court of Appeal of Missouri (US)

Page 82

531 S.W.2d 82

STATE of Missouri ex rel. MISSOURI PACIFIC RAILROAD COMPANY, Relator, v. Hon. Herbert K. MOSS, Circuit Judge, Jefferson County Missouri, Respondent.

No. 36432.

Missouri Court of Appeals, St. Louis District, En Banc.

Dec. 9, 1975.

Spradling, Dursch & Dillard, Walter S. Drusch, Jr., Cape Girardeau, for relator.

Roberts & Roberts, Geoffrey L. Pratte, Farmington, for respondent.

McMILLIAN, Judge.

The is an original proceeding in prohibition filed by the Missouri Pacific Railroad Company (hereafter Relator) to prohibit further enforcement of the trial court's judgment in Reorganized School District No. 2 v. Missouri Pacific Railroad Company, Circuit Court of Jefferson County, Cause No. 39477. Because of the novelty of the problem presented the cause was transferred, without opinion, to a seven judge panel of the court. Thereafter supplemental briefs were filed and the cause re-argued.

The core issue for our decision is (1) whether an addition of prejudgment interest by the court to a jury's verdict is in excess of jurisdiction so as to render void the judgment or whether such conduct on the part of the court was merely erroneous but not jurisdictional; (2) and if a court may not properly do so, whether a writ of prohibition will lie where there was an adequate remedy by appeal and the issue was not raised.

For reasons given herein, we hold that (1) the addition of prejudgment interest by the court was unauthorized and, therefore, erroneous; and (2) a writ of prohibition will not lie where there was an adequate remedy by appeal and the issue was not raised. Accordingly, we hold that the preliminary writ was improvidently granted, and hereby order that the writ be quashed.

Commencing in November, 1966, relator widened its right-of-way fourteen feet onto adjacent school property. The School Board (hereafter Respondent) filed an inverse condemnation action in April, 1968, in the Circuit Court of Iron County. Based on interrogatories and testimony, that court sustained respondents' motion for summary judgment as to the fact that relator's entry on the land had occurred on or about the first day of November, 1966; relator did not appeal. Thereafter, the cause was transferred to the Circuit Court of Jefferson County on a change of venue. A jury trial on March 27, 1972 resulted in a verdict of $140,000 to which the court added interest at the rate of 6% per annum from December 1, 1966--in effect, from the date of taking.

Relator appealed on the issue of measure of damages for the taking of school property but did not raise the interest issue. The judgment was affirmed by this court, 503 S.W.2d 153 (Mo.App.1973). On November 13, 1973, a motion for rehearing or transfer was denied. On January 14, 1974, an application to transfer was denied.

Relator forwarded to the Circuit Court of Jefferson County its check in the amount of $156,800 for the principal amount of $140,000 plus interest of $16,800 from March 27, 1972 but omitting the prejudgment interest. The proceeds of the check were ordered distributed to respondent and thereafter, an execution was issued seeking the further sum of $54,250 as interest by virtue of the judgment. A motion to quash the execution was overruled by the trial court on June 10, 1974; relator did not appeal. On August 8, 1974 relator filed its petition for writ of prohibition. This court entered a preliminary writ of prohibition.

Relator asserts that the trial court exceeded its jurisdiction in two ways; in making an independent finding, not submitted to the jury in the instructions, at the time of taking; and in adjudging an award of interest, which was neither submitted to the jury in the instructions nor included in the jury verdict. On the latter point, relator relies on the implications of § 523.045, RSMo 1969. Respondent contends not only that the trial court had jurisdiction but also that this writ was not timely filed. Therefore, two issues are presented. First, whether the trial court's award of prejudgment interest in an inverse condemnation case was an act in excess of jurisdiction, and secondly, whether a writ of prohibition will lie in this situation.

Because of their constitutional dimension, lack of subject matter jurisdiction and lack of personal jurisdiction are defects which the law seeks to prevent the defendant from conceding or waiving. For these reasons, collateral attacks and multiple appeals are sometimes allowed in these situations. Our research indicates that most of those cases which have allowed prohibition as a remedy for lack of jurisdiction have dealt with lack of subject matter jurisdiction, e.g., Randles v. Schaffner, 485 S.W.2d 1 (Mo.1972); State ex rel. Sisters of St. Mary v. Campbell, 511 S.W.2d 141 (Mo.App.1974); State ex rel. T. J. H. v. Bills, 504 S.W.2d 76 (Mo.1974); Farrar v. Moore, 416 S.W.2d 711 (Mo.App.1967). Here, jurisdiction over the subject matter and person are not in dispute.

It is true that the concept of jurisdiction includes not only jurisdiction over the subject matter and person but also the jurisdiction, or power, to act in certain ways. Farrar v. Moore, supra. However, once a court has jurisdiction over the subject matter and person, it is virtually impossible to distinguish acts in excess of jurisdiction from mere error or abuse of discretion. State ex rel. City of Mansfield v. Crain, 301 S.W.2d 415 (Mo.App.1957); Note, The Writ of Prohibition in Missouri, 1972 W.U.L.Q. 511 (Summer 1972). In those rare cases where prohibition was based on acts in excess of jurisdiction, the defect was so great and so clearly evident as to go beyond error. See State ex rel. Berbiglia v. Randall, 423 S.W.2d 765 (Mo.Banc 1968) (Entry of second judgment in case without vacating first had effect of improperly leaving cause with two judgments.).

Inverse condemnation is essentially a tort action for damages. Admittedly, in such an action, the interest would ordinarily begin to run from the date of judgment. But that is not to say that an award of prejudgment interest amounts to an act in excess of jurisdiction. Here, the trial judge had jurisdiction over the person and the subject matter and he had jurisdiction to enter a judgment. The addition of interest to the verdict may have been erroneous but there was no lack of jurisdiction. 'A trial judge has jurisdiction to be wrong.' State ex rel. Schaper v. Stussie, 487 S.W.2d 49 (Mo.App.1972). Van Noy v. Huston, 448 S.W.2d 622 (Mo.App.1969), is dispositive on this very issue. There, the Springfield Court of Appeals held that an award of prejudgment interest contrary to the verdict was judicial error. Therefore, on the first issue, it is clear that there was no act in excess of jurisdiction.

Missouri courts have consistently maintained that prohibition is an extraordinary remedy, not a panacea for legal wrongs. ¹ E.g., State ex rel. Deering Milliken, Inc. v. Meyer, 449 S.W.2d 870, 873 (Mo.App.1970); State ex rel. Hilleary & Partners, Ltd. v. Kelly, 448 S.W.2d 926, 932 (Mo.App.1969). Mere error or irregularity or mistake is not a ground for prohibition. Delaney v. Police Court of Kansas City, 167 Mo. 667, 67 S.W. 589 (1902); State ex rel. T. J. H. v. Bills, supra; State ex rel. Schaper v. Stussie, 487 S.W.2d 49 (Mo.App.1972); State ex rel. Houser v. Goodman, 406 S.W.2d 121 (Mo.App.1966); State ex rel. City of Mansfield v. Crain, supra. In State ex rel. Terminal Railroad Ass'n v. Tracy, 237 Mo. 109, 140 S.W. 888 (1911), the Supreme Court of Missouri said, 'The writ is always fefused where is appears that the court has jurisdiction over the matter complained of.' An appeal from final judgment is, as a general rule, deemed an adequate remedy for the correction of all errors committed in the course of a trial. State ex rel. Vogel v. Campbell, 505 S.W.2d 54; State ex rel. Schaper v. Stussie, supra; State ex rel. Houser v. Goodman, supra. Denial of the writ does not necessarily mean that the trial court is error-free. State ex rel. Houser v. Goodman, supra; State ex rel. City of Mansfield v. Crain, supra; Missouri Bar, Missouri Appellate Practice and Extraordinary Remedies, § 9.5 (2d Ed. 1974).

'In such a case, however gross the error, irregularity or mistake, the writ does not lie, not because as is sometimes erroneously stated, there exist other adequate remedies, or such remedies are inhibited, but for the reason that there has been no usurpation or abuse of power.' F. Ferris, The law of Extraordinary Legal Remedies, 440--441 (1926).

Therefore, on the second issue, the writ will not lie to correct a non-jurisdictional error.

'It is also held, on the general ground that prohibition does not issue ex debito justitiae, that when the applicant has made out his prima facie case bringing it within the technical requirements of the law, the question still remains, does the real right and justice of the case call for this extraordinary remedy? In determining that question, if there is anything in the circumstances suggesting that the party has neglected to apply for relief that was reasonably available, then the writ should be withheld, at least until such relief has been sought. Ferris, supra, at 431--432, citing State ex rel. McCaffery v. Aloe (152 Mo. 466), 54 S.W. 494 (Mo.1899).'

Not only did relator have a remedy by appeal, but in fact it took an immediate appeal in which it did not raise the interest issue, and it delayed over two years before applying for this writ. Therefore, it would also have been within the discretion of the petitioned court to deny the writ, even if there had been acts in excess of jurisdiction, because relator neglected to utilize other available remedies.

Alternatively, commentators have suggested that the case law on prohibition can be reconciled by the use of a pragmatic test:

'When it appears that the relator will be irreparably injured unless he is allowed an immediate review of the lower court's conduct, upper courts have been willing to issue...