State ex rel. St. Louis v. Sartorius

• Decision Date: 24 March 1937
• Docket Number: No. 35142.,35142.
• Citation: 102 S.W.2d 890
• Parties: STATE OF MISSOURI at the relation of THE CITY OF ST. LOUIS, a Municipal Corporation, Relator, v. EUGENE J. SARTORIUS and M. HARTMANN, Judges of the Circuit Court of the City of St. Louis.
• Court: Missouri Supreme Court

102 S.W.2d 890

STATE OF MISSOURI at the relation of THE CITY OF ST. LOUIS, a Municipal Corporation, Relator, v. EUGENE J. SARTORIUS and M. HARTMANN, Judges of the Circuit Court of the City of St. Louis.

No. 35142.

Supreme Court of Missouri.

Court en Banc, March 24, 1937.

Mandamus.

ALTERNATIVE WRIT OF MANDAMUS MADE PEREMPTORY.

E.H. Wayman, John T. Hicks and Francis J. Sullivan for relator.

(1) After payment of the first commissioners' award into court the relator is entitled to possession of defendants' property. Mo. Const., Art. II, Sec. 21; Charter, City of St. Louis, Art. XXI, Sec. 6; Rothan v. Ry. Co., 113 Mo. 132; St. Louis Oak Hill v. Fowler, 113 Mo. 473; Thompson v. St. Louis, 253 S.W. 972; St. L.M. & S. Ry. Co. v. Aubuchon, 199 Mo. 352, 97 S.W. 867. (2) The defendants in a condemnation proceeding under the city charter are not deprived of the award deposited in court, neither are their rights affected if they withdraw the award. St. Louis O.H. & C. Ry. Co. v. Fowler, 113 Mo. 473; St. Louis v. Gerhart Realty Co., 40 S.W. (2d) 661, 328 Mo. 163. (3) A judgment entered in a condemnation proceeding under the city charter is in all respects a final judgment. Charter, City of St. Louis, Art. XXI, Sec. 8; Secs. 1018, 1070, R.S. 1929. (4) Relator has the legal right to file its motion for a new trial after judgment, if filed within the prescribed time. The fact that relator did not comply with the final judgment in a condemnation proceeding does not preclude it from filing its motion for a new trial. Secs. 1005, 1020, R.S. 1929. (5) The function of a motion for a new trial is to preserve the errors of the trial court at the trial so that such errors may be reviewed by the appellate court. Dougherty v. Manhattan Rubber Mfg. Co., 29 S.W. (2d) 126, 325 Mo. 656; Crawford v. Amusement Syn. Co., 37 S.W. (2d) 581; Duerst v. Townes, 31 S.W. (2d) 583, 224 Mo. App. 675; St. Louis Law Ptg. Co. v. Aufderheide, 45 S.W. (2d) 543, 226 Mo. App. 680; Spotts v. Spotts, 55 S.W. (2d) 977; Rees v. Burrell, 55 S.W. (2d) 1003. (6) Motions to strike are governed by the code of civil procedure of the State of Missouri. Secs. 784, 785, 786, R.S. 1929. (7) The striking of a motion for a new trial from the files is not within the inherent discretion of the trial court. Langston v. Sou. El. Ry. Co., 147 Mo. 464, 48 S.W. 835. (8) When the trial court struck relator's motion for a new trial from the files, mandamus is the proper remedy to compel respondents to reinstate said motion and to rule on same. State ex rel. Meinhard v. Stratton, 110 Mo. 426, 19 S.W. 803; McKee v. Jones D.G. Co., 152 Mo. App. 241, 133 S.W. 1191; State ex rel. Wright v. McElhenney, 72 S.W. (2d) 895. (9) The denial of an application for a writ of prohibition in the Supreme Court and the subsequent denial of a like application for a writ of prohibition in the St. Louis Court of Appeals relative to a proposition entirely foreign to the case at bar is not res adjudicata.

Ford W. Thompson for respondents.

(1) The decision of this court, together with that of the St. Louis Court of Appeals (of which this court will take judicial notice), on said application for the writ of prohibition filed in this court on April 13, 1936, and entitled cause No. 34,858, State ex rel. City of St. Louis, a municipal corporation, relator, v. Eugene J. Sartorius and M. Hartmann, Judges of the Circuit Court of the City of St. Louis, respondents, and decided by this court on May 2, 1936, and that of the St. Louis Court of Appeals filed May 5, 1936, and denied on May 8, 1936, are pleaded as res adjudicata of the validity and righteousness of the action of the Circuit Court of the City of St. Louis in ordering and directing the city of St. Louis to either pay into court the approved award of $15,000 by a short day therein fixed, or to vacate the Egans' property. (2) The charter of the city of St. Louis under which this condemnation proceeding was instituted by the city provides the special and sole, and only legal machinery by which the said city can and is authorized to condemn private property for public use, and expressly provides by Article XXI, Section 6, as follows: "At any time after the commissioners file their report the City may pay into court the amount of damages assessed, less benefits, if any and thereupon it shall be entitled to take possession of, or damage the property, assuming the lien of all general taxes not then payable on property actually appropriated." (3) However, if the city has exercised its right to take possession and paid into court the amount of an award and that award is subsequently vacated, and a larger award is affirmed, and thereafter and when the final judgment is entered, still wishes to retain possession, but desires to appeal, it must then and there, under the express provisions of its charter, pay the amount of the approved award; and, if successful on appeal, it is expressly provided by said Section 8 as follows: "Should any such final judgment be reversed on appeal and a new assessment be ordered, the City, or any defendant, shall have judgment for any excess due, by reason of payment having been made by such party under a prior final judgment in the cause." (4) The charter of the city of St. Louis, giving the city the power to condemn private property for public use, contains entirely different provisions, and confers entirely different rights from those granted railroads under the general statutes of this State (Secs. 1340, 1341, 1342, 1343, 1344, R.S. 1929).

TIPTON, J.

This is an orginal proceeding in mandamus to compel the respondents, judges of the Circuit Court of the City of St. Louis, to reinstate the relator's motion for a new trial in the case of The City of St. Louis v. Central Institute for the Deaf et al., No. 207079-B, pending in Division 18 of that court and to rule on the same by either sustaining or overruling it.

In that case the City of St. Louis sought to condemn for public use, under Chapter XXI of the Charter of that city, parcels of land, including a lot owned by the defendants, Russell Egan, Elizabeth Egan and Patrick Egan. On July 22, 1935, the permanent condemnation commission filed a partial report in the circuit court ascertaining and reporting the damages sustained by the Egans to be $11,290. Two days later the Egans filed their exceptions to the report and award. On July 29, 1935, the relator deposited in the registry of that court the amount of the award and immediately entered into possession of the property of the Egans, under the provisions of Section 6, of the Chapter XXI. On November 5, 1935, the court sustained the exceptions to the report and award, and in accordance with the provisions of the relator's charter and the matter of assessing and reporting the Egans' damage was referred by the court to the alternate commissioners provided for in relator's charter, who filed a report on December 10, 1935, assessing and awarding damages to the Egans in the sum of $15,000. Whereupon the relator filed its exceptions to the report and award of the alternate commissioners. On January 17, 1935, the court overruled relator's exceptions to the report and award of the alternate commissioners. The relator continued in possession of the Egan property without depositing an additional sum of money with the registry of the court to make its deposit in the sum of $15,000.

On February 1, 1936, the defendants, Egans, filed a motion in that court asking that the relator be required to deposit in court the sum of $15,000, for the use and benefit of the Egans, or failing to make the deposit to vacate their property and surrender possession to them. On May 11, 1936, the court sustained this motion and required the relator to pay $15,000, by May 21, 1936, or to vacate the property. On the same day that the court sustained that motion, it entered final judgment in the cause. Within four days after the entering of the final judgment in that cause, the relator filed its motion for a new trial.

The relator did not vacate the property or deposit the sum of $15,000 in accordance with the award of the alternate commissioners by May 21, 1936. So, on that date the defendants filed a motion to strike relator's motion for a new trial from the files. The court sustained defendants' motion and struck the relator's motion for a new trial from the files and ordered a special execution issued. Other pertinent facts will be stated in the course of this opinion.

Condemnation proceedings brought by the city of St. Louis are governed by Chapter XXI of that city. The pertinent sections of that chapter to the questions involved in this cause are as follows:

"Sec. 6. At any time after the commissioners file their report the city may pay into court the amount of damages assessed, less benefits, if any, and thereupon it shall be entitled to take possession of or damage the property, assuming the lien of all general taxes not then payable on property actually appropriated.

"Sec. 7. Within twenty days from the filing of the comissioners' report, exceptions in writing thereto may be filed by any party interested, and upon such exceptions the court shall review the report and may order, on cause shown, a new assessment by other commissioners, or make such other orders thereon as justice may require. The court shall hear and dispose of such exceptions with all reasonable speed and may itself assess benefits anew.

"Sec. 8. The court upon approving the commissioners report shall render final judgment thereon reciting the report and adjudging that the city have and hold the property petitioned for, describing the same, for the purposes specified, upon payment of the damages less the benefits assessed in each instance; that so much of the report as is a judgment for benefits against specific property be a lien on such property for ten years from entry of the judgment, and prior to all other liens thereon; and that the city recover the respective benefits...