State ex rel. Southern Real Estate & Financial Co. v. City of St. Louis

• Decision Date: 05 April 1938
• Citation: 115 S.W.2d 513,234 Mo.App. 209
• Parties: STATE OF MISSOURI EX REL. SOUTHERN REAL ESTATE & FINANCIAL COMPANY, A CORPORATION, RESPONDENT, v. THE CITY OF ST. LOUIS, A MUNICIPAL CORPORATION AND LOUIS NOLTE, COMPTROLLER OF THE CITY OF ST. LOUIS, APPELLANT
• Court: Missouri Court of Appeals

115 S.W.2d 513

234 Mo.App. 209

STATE OF MISSOURI EX REL. SOUTHERN REAL ESTATE & FINANCIAL COMPANY, A CORPORATION, RESPONDENT, v. THE CITY OF ST. LOUIS, A MUNICIPAL CORPORATION AND LOUIS NOLTE, COMPTROLLER OF THE CITY OF ST. LOUIS, APPELLANT

Court of Appeals of Missouri, St. Louis

April 5, 1938

Appeal from the Circuit Court of the City of St. Louis.--Hon. John W. Joynt, Judge.

AFFIRMED.

Judgment affirmed. Motion to modify opinion overruled.

William H. Killoren for respondent.

(1) Interest cannot be allowed for the period during which the party claiming it has itself delayed the proceeding. Milliken v. Haner, 184 Ky. 694, 212 S.W. 605, l. c 607; Redfield v. Yslalyfera Iron Co., 110 U.S. 175 l. c. 177, 3 S.Ct. 570, 28 L.Ed. 109; Newell v Keith, 11 Vt. 214, l. c. 219, 220; The Arpello, 270 F. 426, l. c. 429; Pennsylvania R. Co. v. Downer Towing Corp., 11 F.2d 466; The John J. Timmons, 14 F.2d 435; 33 C. J., Interest, sec. 140, p. 239; The Empress, 59 F. 476; Coast Lumber Co. v. Aetna Life Ins. Co., 22 Idaho 264, 125 P. 185; Evers v. Glynn, 126 A.D. 519, 110 N.Y.S. 405. (2) While the City's appeal was pending the judgment in its favor was suspended. Scullin v. Wabash R. Co., 192 Mo. 6, l. c. 9, 90 S.W. 1028. (3) The original proceeding was essentially one to impose a tax, and is the exercise of a legislative function delegated to the court. St. Louis v. Senter Com. Co., 84 S.W.2d 133, 139. (4) Pending the city's appeal, it could not have enforced the tax judgment from which it was appealing. Charter, City of St. Louis, Art. XXI, sec. 8. (5) Pending the appeal, the city could not have received the tax or released the land from the lien thereof. Revised Code of St. Louis 1926, sec. 1032, p. 146; State ex rel. Stone v. Kansas City, etc., Ry. Co., 178 S.W. 444. (6) Until the amount of the tax was determined beyond further question or dispute, there was no money due on any judgment. R. S. Mo. 1929, sec. 2841; State v. Hughes Bros. Timber Co., 163 Minn. 4, 203 N.W. 436, l. c. 9, 10; Martin, Exec., v. St. Louis, 139 Mo. 246, l. c. 261. (7) The right of the city to collect the tax and the duty of respondent to pay it rest solely upon the proceeding in court; they do not spring from the existence of antecedent facts upon which the court declares its judgment, as is the case in an ordinary lawsuit. The city not having accepted the judgment, the proceedings to levy the tax were not completed, and the tax was not properly levied. Until properly levied in the correct amount, a tax will not bear interest. State v. Hughes Bros. Timber Co., supra.

E. H. Wayman, City Counselor, Jno. T. Hicks and Francis J. Sullivan, Associate City Counselors, for appellants.

(1) When a judgment of the circuit court is affirmed by the appellate court said judgment is not a new judgment. City of St. Louis v. Senter Commission Co., 73 S.W.2d 389, l. c. 391. (2) If a motion for a new trial were sustained the judgment of the trial court would be vacated and set aside and if on appeal the verdict of the trial court was affirmed the interest would be computed from the date of affirmance by the appellate court and not from the date of the original verdict. Scullin v. Railroad Co., 192 Mo. 6. (3) Interest on a special benefit judgment under Article XXI of the Charter of the City of St. Louis commences from the entry thereof in the circuit court. Sec. 8, Art. XXI, St. Louis Charter; Sec. 2841, R. S. Mo. 1929. (4) The Comptroller of the City of St. Louis was within his legal right in refusing to accept the sums tendered to him by relator. Sec. 8, Art. XXI, St. Louis Charter. (5) By depositing or tendering the amount of the special benefit judgments in the circuit court at the time said judgments were rendered such action would have stopped the running of interest. Martin v. St. Louis, 139 Mo. 246; City of St. Louis v. Richardson, 281 S.W. 39; Brunn v. Kansas City, 16 Mo. 108.

BENNICK, C. Hostetter, P. J., and Becker and McCullen, JJ., concur.

OPINION

BENNICK, C.

This is an appeal from the judgment and decision of the Circuit Court of the City of St. Louis that a peremptory writ of mandamus should issue against the City of St. Louis and Louis Nolte, its comptroller, compelling them to receive and accept from relator, Southern Real Estate and Financial Company, certain sums of money which the latter had tendered in full satisfaction of a benefit judgment theretofore rendered against two pieces of its property in connection with a condemnation proceeding for the opening and widening of Market Street in said city.

The material facts of the case are undisputed, and the only question at issue is purely one of law.

The condemnation suit was regularly instituted and prosecuted by the city in accordance with the procedure outlined by Article XXI of the charter, which has to do with the subject of condemnation. Commissioners were appointed by the court to assess the damages and benefits to the property affected by the suit, and in due course they filed their report wherein benefits were assessed against the two pieces of property owned by relator. The latter thereupon filed its exceptions to the report, which exceptions, after a hearing, were sustained by the court, and the assessments reduced to figures for which the court, on May 17, 1932, entered final judgment in favor of the city as provided by Article XXI, section 8, of the charter.

Within due time the city filed its motion for a new trial, which was promptly overruled, whereupon relator filed its motion for a new trial, which in turn was likewise overruled. Thereafter both the city and relator perfected their separate appeals to the Supreme Court, wherein, by stipulation of the parties, the cross-appeals were argued and submitted as one case. The report of the case discloses that the city was contending that the benefits assessed against the property by the judgment of the circuit court were grossly inadequate, while relator for its part was insisting that the assessments, even after the reduction, were still excessive and unreasonable. The Supreme Court reviewed the record in the light of the contentions of the respective parties, and finding that the judgment was supported by the evidence and that there had been no abuse of the court's discretion in reducing the assessments as recommended by the report of the commissioners, it affirmed the judgment in an opinion handed down on April 18, 1934, which is to be found reported as City of St. Louis v. Senter Commission Co., 335 Mo. 489, 73 S.W.2d 389.

Following the action of the Supreme Court in affirming the judgment, relator attempted to satisfy the same by tendering to the comptroller the amount of the judgment against its property, but with interest computed only from April 18, 1934, the date of the Supreme Court's affirmance of the judgment. However the comptroller refused to accept such tender, his contention being that the interest should have been computed from May 17, 1932, the date of the entry of the final judgment in the circuit court, and that by reason of this fact he was without authority to accept any less sum in satisfaction of the judgment than what he conceived to be the full amount due the city under the judgment.

Relator thereupon filed its petition for the issuance of a writ of mandamus to compel the city and its comptroller to accept the sum so tendered as in full satisfaction of the judgment and to release and satisfy the judgment liens outstanding against its property. The issues were made up and a hearing had, at the conclusions of which the court ordered that its peremptory writ should issue as prayed by relator in its petition. From the judgment so entered the city and the comptroller were thereupon allowed an appeal to the Supreme Court, which found, however, that it was without jurisdiction over the appeal, and consequently ordered that the cause be transferred to this court for our determination.

Now as has already been pointed out, the sole question at issue between the parties in this proceedings is whether, in determining the aggregate amount to be paid in full satisfaction of the judgment so as to obtain the release of the liens outstanding against relator's property, the interest on the judgment should be computed from the date of the entry of the same in the circuit court as would ordinarily be the case, or whether, as a consequence of the city's appeal from the judgment which was in its favor, the interest to be paid by relator should be computed only from the date of the affirmance of the judgment in the Supreme Court.

The specific authority for the allowance of interest upon judgments rendered in condemnation suits which are brought by the city in the exercise of its power to condemn private property for public purposes is to be found in Article XXI section 8, of the charter, which requires that the court, after the amounts of the respective assessments have been determined, shall render a final judgment which shall provide, among other things, "that the City recover the respective benefits in excess of damages assessed in each instance against private property with interest from date of judgment and have execution therefor." Indeed the fact is that even were the charter silent with respect to the allowance of interest, the judgment in such a case would nevertheless bear interest in view of the fact that it is in all respects a final judgment as that term is used in statutes requiring interest to be paid on judgments, and therefore within the application of the general statute (sec. 2841, R. S. Mo. 1929 [Mo. Stat. Ann., sec. 2841, p. 4628]), which provides that "interest shall be allowed on all money due upon any judgment or order of any court, from the day of rendering the same until satisfaction be made by...