State ex rel. Pierce v. Skinker et al.
| Decision Date | 24 August 1934 |
| Docket Number | No. 5382.,5382. |
| Citation | 74 S.W.2d 893 |
| Court | Missouri Court of Appeals |
| Parties | STATE OF MISSOURI EX REL. REBECCA PIERCE AND NEWTE PIERCE, HER HUSBAND, ROLLA PIERCE AND GLADYS PIERCE, HIS WIFE, ANNIE PIERCE, ADMRX., ESTATE OF B.C. PIERCE, DECEASED, AND R.B. PETTS, TRUSTEE, PLAINTIFFS, v. HON. CORNELIUS H. SKINKER, JUDGE OF HICKORY COUNTY CIRCUIT COURT, AND THE UNION ELECTRIC LIGHT & POWER COMPANY, A CORPORATION, DEFENDANTS. |
David E. McLean and Sebree, Sebree & Shook for respondents.
On August 12, 1933, relators presented to this court their petition for a writ of prohibition, and on the same day the court issued its preliminary writ commanding the respondents to appear and show cause why final judgment in prohibition should not be rendered against them.
The respondents made return. Both sides filed briefs, and made oral argument at the January call, 1934, of the October term, of this court.
The pleadings and exhibits here presented show the following state of facts in connection with the proceedings in this case.
On January 22, 1931, the Union Electric Light & Power Company, a corporation, existing under and by virtue of the statutes of the State of Missouri, filed a petition in condemnation in the Circuit Court of Benton County, Missouri, seeking by said petition to condemn certain lands belonging to Rebecca Pierce, and joining as defendants therein the said Rebecca Pierce and Newte Pierce, her husband, Rolla Pirce, the tenant in possession of said land, and Gladys Pierce, his wife; D.C. Pierce, now deceased (Annie Pierce, duly appointed and qualified administratrix of the estate of D.C. Pierce being herein properly substituted, as beneficiary of a certain deed of trust on said land); and R.B. Petts, trustee in said deed of trust; said action being entitled The Union Electric Light & Power Company, a corporation, plaintiff, against said named defendants.
On February 14, 1931, the Circuit Court of Benton County, Missouri, entered a judgment in condemnation of said lands, consisting of eighteen acres more or less, and appointing commissioners to assess damages shown by Exhibit A-1 filed in this court.
On February 26, 1931, the report of commissioners (Exhibit A-2) was filed with the clerk of the Circuit Court of Benton County Missouri, assessing damages in the sum of two thousand five hundred dollars ($2,500). (The award was paid to the clerk and withdrawn by the land owners.) Afterwards, on March 5, 1931, the Union Electric Light & Power Company filed its written exceptions (Exhibit A-3) to the report of commissioners and requested a jury trial as to the amount of damages. On June 8, 1931, the Circuit Court of Benton County, reviewed the report of commissioners and made and entered an order confirming condemnation and vesting title and right of possession to said land (Exhibit A-4). We shall consider this judgment further hereinafter. Following such review and judgment on June 8, 1931, the Union Electric Light & Power Company filed an application for a change of venue (Exhibit A-5), on the ground that defendants had an undue influence over the mind of the judge of said court. Thereupon, and on June 8, 1931 (but after rendering its judgment aforesaid), the Circuit Court of Benton County made an order granting a change of venue to the Circuit Court of Hickory County, Missouri (Exhibit A-6), and directing the clerk to transmit to Hickory County a transcript of the record together with all original papers in said cause. Pursuant to this order, such transcript was so sent to the Clerk of the Circuit Court of Hickory County, Missouri.
On April 29, 1932, the Union Electric Light & Power Company appeared in the Circuit Court of Hickory County, and filed therein a motion to amend the original petition and original judgment in the cause. This requested amendment shown by Exhibit B-1 both to the petition and the judgment is in words and figures as follows:
"Now on this 29th day of April, 1932, comes the plaintiff in open court, prior to the empanelling of a jury for the trial upon the written exceptions filed to the award of commissioners, and moves the court for permission to amend the petition and judgment in condemnation herein by inserting therein the following stipulation: `Plaintiff hereby stipulates, that the inundation of that portion of the lands condemned which lies above contour 662 feet above mean gulf level, and below contour 673 feet above mean gulf level, which portion, herein described, lies between said contours, shall be at all times limited to such intermittent and temporary inundation as shall be occasioned in times of flood or high waters by the maintenance and operation of said hydro-electric project with maximum normal pool elevation of water at the dam of 660 feet above mean gulf level, Biloxi, Mississippi.' That portion of the land of said defendants which is above said elevation 662 feet and below said elevation 673 feet and subject to the aforesaid intermittent and temporary inundation is described as follows:" (A minute description of the land is set out.)
On April 29, 1932, the Circuit Court of Hickory County entered an order amending said petition and judgment of condemnation (Exhibit B-2), by which the cause of action and judgment were so altered and changed as to change the land involved in said action from eighteen acres, more or less, as viewed and assessed by the commissioners in Benton County to eight and six-tenths acres of land. None of these relators ever appeared in the Hickory County Circuit Court, either in person or by attorney.
On November 25, 1932, the Circuit Court of Hickory County entered another judgment making a new appraisement, and by which it adjudged that the Union Electric Light & Power Company recover of and from these relators (including D.C. Pierce, deceased) the sum of two thousand dollars ($2,000) being part of the damages theretofore assessed, adjudged, confirmed and paid for the lands so condemned.
D.C. Pierce died on the 20th day of February, 1933. The Union Electric Light & Power Company has presented said judgment, entered by the Circuit Court of Hickory County, as a demand against his estate, and has also caused a transcript thereof to be filed in the office of the clerk of the Circuit Court of Henry County, Missouri, and is threatening to levy upon the lands and property of relators thereunder.
As heretofore stated this court on August 12, 1933, issued its preliminary writ of prohibition commanding the respondents to appear on a day fixed in said writ and show cause why this court should not enter its final judgment prohibiting the enforcement of the judgment of the Circuit Court of Hickory County entered on November 25, 1932, in the action entitled The Union Electric Light & Power Company, a corporation against these relators.
The return of the respondents is in the nature of a demurrer to the petition, and prayed for a dismissal, and is expressed in the following language, caption and formal parts omitted:
We can dispose of the first and third paragraphs of the return rather easily. We think it has been held as a general rule that the party litigant is not a necessary party to be named in a proceeding in prohibition, as was done in this instance in naming the Union Electric Light & Power Company, but it has also been held that so naming the litigant is not fatal to the action, and we so hold here. We are sustained in this by the following cases: State ex rel. Powers v. Rassieur (Mo.), 184 S.W. 116; State ex rel. Stroh v. Klene (Mo.), 207 S.W. 496; State ex rel. Phillips v. Barton (Mo.), 254 S.W. 85; State ex rel. Ramsey v. Green (Mo. App.), 17 S.W. (2d) 629.
This brings us then to the only other allegation in the return or to the demurrer to the petition, namely, "the petition does not state facts sufficient to constitute a cause of action."
As we understand it, the rule in prohibition is that where, the record consists of the application with the exhibits attached thereto and made a part of said application, and respondents demur thereto, as in this case, and there are no further pleadings, the undenied allegations of fact contained in the application or petition are taken as the facts of the case. We shall so consider it in this case. [State ex rel. Darst et al. v. Wurdeman, 304 Mo. 583, 264 S.W. 402; State ex rel. Drainage District No. 8 v. John E. Duncan (Mo.), 68 S.W. (2d) 679.]
We have heretofore set out the facts as shown by the application and the exhibits attached thereto. Relators contend that the judgment of the Circuit Court of Benton County rendered on June 8, 1931, was a final adjudication of the cause and that the Union Electric Light & Power Company had no right to a change of venue after said final judgment was entered. The respondents contend that the judgment of June 8, 1931, was not a final judgment so as to preclude a further hearing as to the amount of damages, and that the Circuit Court of Benton County had jurisdiction to grant the change of venue, and that since the venue was changed to Hickory County, the Hickory County Circuit Court had jurisdiction with full power to try the case.
This record shows that on February 14, 1931, a judgment was entered in the Circuit Court of Benton County to the effect "That all the right, title and interest of the defendants and each of them in...
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