State ex rel. R. W. Filkey, Inc. v. Scott

• Decision Date: 20 September 1966
• Docket Number: No. 31903,31903
• Citation: 407 S.W.2d 79
• Parties: STATE of Missouri ex rel. R. W. FILKEY, INC., a Corporation, and Hawkinson Tread Tire Service Company, a Corporation, Relators, v. The Honorable Michael J. SCOTT, Judge of Division 1 of the Circuit Court ofthe City of St. Louis, Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 79

407 S.W.2d 79

STATE of Missouri ex rel. R. W. FILKEY, INC., a Corporation and Hawkinson Tread Tire Service Company, a Corporation, Relators, v. The Honorable Michael J. SCOTT, Judge of Division 1 of the Circuit Court ofthe City of St. Louis, Missouri, Respondent.

No. 31903.

St. Louis Court of Appeals, Missouri.

Sept. 20, 1966.

Thomas, Busse, Weiss, Cullen & Godfrey, Carl R. Gaertner, Donald Clooney, St. Louis, for relators.

Robert L. Hyder, Chief Counsel, C.J. McEnery, Jr., Asst. Counsel, Jefferson City, Edwin Brzezenski, Asst. Counsel, Kirkwood, for respondent.

DOERNER, Commissioner.

This original proceeding in prohibition comes to the writer by a very recent reassignment. Relators are two of the defendants in a cause entitled State of Missouri ex rel., State Highway Commission of Missouri v. Leona Miehe, et al., pending in the Circuit Court of the City of St. Louis before the respondent judge, wherein the State Highway Commission seeks to condemn among others the two parcels of property owned by the respective relators. By this proceeding the relators seek to prevent the respondent from entering an order in said cause quashing certain subpoenas duces tecum heretofore issued therein. It is admitted that unless prohibited the respondent will enter such an order.

Both parties have been guilty of stating in their briefs alleged facts which do not appear in the record before us. The petition, the return to the preliminary rule, and the reply form the pleadings in a prohibition proceeding, Sec. 530.030 et seq., RSMo 1959, V.A.M.S., and except for the contract subsequently referred compose the entire record before us, State ex rel. McCubbin v. McMillian, Mo.App., 349 S.W.2d 453. As developed by the pleadings, the only substantive facts which we may consider are these: In 1958 a contract was entered into between the State Highway Commission (therein called the Commission), the Land Clearance for Redevelopment Authority of St. Louis (therein called the Authority) and the City of St. Louis (therein called the City). The recitals in that agreement read:

'WHEREAS, Commission contemplates the construction of an extension of the highway known as the Daniel Boone Expressway from the vicinity of the intersection of Grand and Market Streets in the City of St. Louis to a point in the vicinity of Spruce and 21st Streets in the City of St. Louis (with possible future extensions), and

'WHEREAS, Authority contemplates the immediate acquisition of real estate along said proposed route and in the area known as the Mill Creek Valley area in the furtherance of its objective of redevelopment, and

'WHEREAS, City is to be obligated to pay a portion of the necessary cost of right-of-way for the construction of the proposed extension of the Daniel Boone Expressway by Commission,'

After two paragraphs concerning a future contract between the City and the Commission regarding the sharing of the cost of acquisition of the right-of-way for the highway, the agreement contains the following provisions pertinent to this proceeding:

'3. Commission agrees that, after execution of the aforementioned agreement by the City and Commission, it will reimburse Authority for the real estate acquired by said Authority which lies within the right-of-way of said proposed improvement along the route finally agreed upon by City and Commission. The term 'reimbursement' as herein used shall mean Authority's actual cost of the real estate procured in the manner hereinafter set forth and incidental cost of acquisition and demolition incurred by Authority, including the cost of appraisals, abstracting, cost of preparation of deeds, cost of preparation of contracts, and demolition of any structures on the land to be acquired for right-of-way purposes. In the event any question shall arise because of the demolition or acquisition of buildings partly within the partly outside the right-of-way, agreement for proration shall be effected by representatives of the Commission and Authority. Reimbursement shall be made by Commission on receipt of a proper conveyance of land within the right-of-way required from Authority.

'4. Commission will as soon as reasonably possible furnish Authority with plans showing the extent of right-of-way required for the proposed highway improvement.

'5. Authority will, in accordance with its existing plans, procure all the property described as the Mill Creek Valley Area as indicated on sketch or plan sheet attached hereto and marked Exhibit 'A' and being the land to be taken in accordance with the Redevelopment Plan on which Authority is now engaged.

'6. Authority will employ competent appraisers to appraise each tract of land taken, prior to acquisition, and will in all respects comply with regulations and requirements of the governmental agency through which it operates.

'7. Authority agrees that it will acquire all real estate taken by the entirety at its reasonable market value and will acquire partial takings for the difference between the value of the entire tract prior to the taking and the value immediately thereafter. It will permit Commission, or its representatives, or representatives of the Bureau of Public Roads to examine its records, appraisals, and other documents and information relating to land acquisition at any time.'

Subsequent to the execution of the foregoing contract the Land Clearance for Redevelopment Authority employed Joseph Feco, William Randall, Thomas McReynolds, and Roy Wenzlick to appraise the relators' property. Thereafter, at some time not disclosed by the record before us, it filed a condemnation suit in the Circuit Court of the City of St. Louis, styled Land Clearance for Redevelopment Authority of St. Louis v. Sterling Lacquer Manufacturing Company, et al., in which it sought to acquire the relators' property, among others. Subsequently, on June 4, 1962, the Redevelopment Authority dismissed its suit as to the relators, but the reason for such dismissal does not appear in the record before us.

On April 29, 1963, the State Highway Commission filed the condemnation suit now pending before respondent, in which the relators are named as defendants. Commissioners were duly appointed and assessed relators' damages for the taking of their property at the total sum of $130,000. Both of the relators, and the State Highway Commission, filed exceptions to the awards and the respective trials as to relators' damages were set on the trial dockets of March 16 and 23, 1964. In preparation for such trials the relators caused to be issued by said court various subpoenas duces tecum directed to the appraisers Feco, Randall, McReynolds, and Wenzlick, commanding each of them to appear at such trials and to produce their appraisals and other papers therein described. The State Highway Commission filed its motion to quash such subpoenas, and after a hearing on said motion the respondent indicated his intention to enter an order quashing them. This proceeding followed.

It would appear from our statutes that a litigant has a right as of course to require the attendance at the trial of those witnesses, and the production of such documents, as in his judgment are required by him to meet the issues raised in the action. Thus Section 491.090, RSMo 1959, V.A.M.S. provides that in all cases where witnesses are required to attend the trial in any cause in any court of record, a summons shall be issued by the clerk of the court. And the first paragraph of Section 491.100, after specifying that such summons shall be in the form of a subpoena, and what it shall contain, continues:

'* * * The clerk of the court wherein the matter is pending, or the notary public of the county wherein such trial shall be had, shall issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed, but otherwise in blank, to a party requesting it, who shall fill it in before service.' (Emphasis ours.)

The only statutory limitation on the right of a litigant to require the production of documentary evidence at the trial is contained in the second paragraph of Section 491.100, which reads:

'Where a subpoena commands the...