State ex rel. State Highway Com'n v. Houchens, 27929

• Decision Date: 19 December 1950
• Docket Number: No. 27929,27929
• Citation: State ex rel. State Highway Com'n v. Houchens, 235 S.W.2d 97 (Mo. App. 1950)
• Parties: STATE ex rel. STATE HIGHWAY COMMISSION v. HOUCHENS et al.
• Court: Missouri Court of Appeals

Page 97

235 S.W.2d 97

STATE ex rel. STATE HIGHWAY COMMISSION v. HOUCHENS et al.

No. 27929.

St. Louis Court of Appeals, Missouri.

Dec. 19, 1950.

Rehearing Denied Jan. 19, 1951.

L. F. Cottey, of Lancaster, and J. B. Smott, of Memphis, for appellants.

Craig Hiller, of Kahoka, and W. E. Stewart, of Edina, for respondent.

BENNICK, Judge.

This is a condemnation suit which was instituted by the State Highway Commission in the Circuit Court of Scotland County on September 12, 1939, and was thereafter taken on change of venue to the Circuit Court of Knox County.

It seems to be undisputed that the purpose of the Commission was to relocate Highway No. 4 so as to skirt the edge of the city of Memphis.

A part of the project involved the condemnation of a strip of right of way through the land of one James A. Mitchell, who was named as one of the defendants to the suit.

Upon the institution of the suit the court appointed commissioners, who viewed the property and on October 3, 1939, filed their report assessing Mitchell's damages at the sum of $2,500.

Within due time both the Commission and Mitchell filed exceptions to the report.

On October 17, 1939, the Commission paid to the clerk of the court the sum of $2,500 for the Benefit of Mitchell, the party in whose favor the damages had been assessed. However the Commission, notwithstanding such deposit, made no attempt at that time to take over the actual physical possession of the land.

For some unexplained reason Mitchell did not claim the deposit, and on November 9, 1939, twenty-three days after it had made the deposit, the Commission itself withdrew the same in its entirety. The record does not disclose any order of court authorizing such action by the Commission, nor does it afford any explanation of why the withdrawal was made.

Nineteen days later, or on November 28, 1939, Mitchell conveyed the land by warranty deed to Vance Vaught and Ruby Vaught, his wife, 'subject to highway right of way'.

On December 9, 1939, Mitchell died intestate, leaving surviving him, as his sole heir at law, his daughter, Edythe Rugh. However there was no suggestion of his death until August 27, 1947, when the Commission appeared in court and made formal suggestion to that effect.

Following the Commission's withdrawal of its deposit on November 9, 1939, there had been nothing done in the case other than to continue it from time to time by agreement of the parties until May 24, 1941, when the court ordered it stricken from the printed docket, subject to be redocketed at the order of the court.

Meanwhile, on August 9, 1943, Vance Vanght and Ruby Vanght, who had acquired the land from Mitchell, conveyed the same by warranty deed to Ivan Ludwick and Eula Ludwick, his wife, 'subject to highway right of way'.

After the case had been stricken from the printed docket, there was no further action until May 9, 1947, when the Commission once again paid over to the clerk the sum of $2,500 as the amount of the award which had been made by the commissioners almost eight years previously.

The money, incidentally, is still in the hands of the clerk pending the determination of the present controversy which involves the single ultimate question (as will subsequently appear) of whether the money belongs to Edythe Rugh as the sole heir of Mitchell, who was the owner of the land at the time of the institution of the suit and at the time of the original deposit of the award, or whether, on the contrary, it belongs to Ivan Ludwick and Eula Ludwick, who had meanwhile acquired the land and were the owners of it at the time the deposit was again paid into court after the Commission had apparently decided to proceed with the actual construction of the highway.

On May 29, 1947, the Commission filed a motion asking that the case be restored to the active docket, which motion was sustained on June 6, 1947.

On August 25, 1947, the Commission entered upon and took over the actual physical possession of the land for the first time.

We have already pointed out that Mitchell's death was suggested to the court on August 27, 1947.

On September 5, 1947, Ivan Ludwick and Eula Ludwick filed their motion asking to be make parties defendant to the cause upon the theory that they were the only persons to be injured by the appropriation of the land, and consequently were the only persons entitled to the compensation therefor. They claimed the right to be made parties defendant for the purpose of attacking the jurisdiction of the court, and then, in the event such attack was unsuccessful, of asserting such right and defenses as might be available to them as the then owners of the land and as alleged successors in title and interest to Mitchell, the original defendant.

On October 10, 1947, the court sustained the motion and ordered that Ivan Ludwick and Eula Ludwick be made parties defendant with leave to adopt as their own any pleadings theretofore filed by or on behalf of Mitchell, as well as to file any other or further pleadings which might be proper in the case.

On December 11, 1947, Edythe Rugh appeared in court and filed a motion asking that she be made a party defendant, and that as Mitchell's sole heir, and as the alleged successor to his interest, she be allowed to adopt and proceed with the exceptions theretofore filed on his behalf. On the same day the motion was taken up and likewise sustained.

Since it appeared from the situation thus before the court that any and all compensation to be awarded would belong solely and exclusively either to Ivan Ludwick and Eula Ludwick on the one hand, or to Edythe Rugh on the other, the Ludwicks, on April 13, 1948, filed a motion asking that the several defendants be required to interplead and try out the issue as to which of them was entitled to the compensation as a preliminary to any further proceedings in the case.

On October 6, 1948, it was stipulated that such motion should be sustained, and that the issue of which of the contending parties was entitled to the compensation should be submitted to the court for determination on an agreed statement of facts. It was specifically recognized in the stipulation that the Ludwicks and Edythe Rugh were the only parties claiming any right to the compensation, and that the party or parties against whom the court's decision should go would have no further interest in the proceeding.

On December 7, 1949, the court rendered its judgment, holding that title to the land condemned was taken from Mitchell and vested in the Commission on October 17, 1939, when the Commission made its initial deposit in court; that Mitchell then and there became entitled to the award, and remained so entitled until his death intestate on December 9, 1939, after which his right to receive the award passed to Edythe Rugh as his sole surviving heir at law; that Edythe Rugh had thereafter been solely and exclusively entitled to receive the award or any other award that might thereafter be made in the final determination of the condemnation proceeding; and that Ivan Ludwick and Eula Ludwick had no right or interest therein.

Following the entry of such judgment, Ivan Ludwick and Eula Ludwick filed their motion for a new trial; and this being overruled, they gave notice of appeal, and by subsequent steps have caused the case to be transferred to ...