State ex rel. State Highway Commission of Mo. v. Hudspeth, No. 29798

CourtCourt of Appeal of Missouri (US)
Writing for the CourtPER CURIAM; PER CURIAM
Citation303 S.W.2d 703
PartiesSTATE of Missouri ex rel. STATE HIGHWAY COMMISSION OF MISSOURI (Plaintiff), Respondent, v. E. G. HUDSPETH et al., Defendants, Town of Norwood Court (Intervenor), Appellant.
Docket NumberNo. 29798
Decision Date14 June 1957

Page 703

303 S.W.2d 703
STATE of Missouri ex rel. STATE HIGHWAY COMMISSION OF
MISSOURI (Plaintiff), Respondent,
v.
E. G. HUDSPETH et al., Defendants, Town of Norwood Court
(Intervenor), Appellant.
No. 29798.
St. Louis Court of Appeals, Missouri.
June 14, 1957.
Motion for Rehearing and Clarification of Opinion Denied
July 18, 1957.

Page 704

Erwin F. Vetter, E. Gary Davidson, Jr., Clayton, for appellant.

Robert L. Hyder, Wilkie Cunnyngham, Bruce Ring, Minor C. Livesay, Jefferson City, Roscoe C. Summers, Richmond Heights, for respondent.

HOUSER, Commissioner.

This condemnation proceeding, originally appealed to the Supreme Court, was transferred to this court for lack of jurisdiction. State of Missouri ex rel. State Highway Commission of Missouri v. Hudspeth Mo.Sup., 297 S.W.2d 510.

The substance of the petition for condemnation and of appellant's proposed answer and the whole of appellant's motion to intervene appear in the opinion of the Supreme Court and need not be repeated here.

The sole question for decision, as delimited by the opinion of the Supreme Court, is whether on the face of the record appellant Town of Norwood Court, a municipal corporation, has an absolute and unconditional right to intervene in this proceeding. Appellant asserts such a right by virtue of paragraph 1 of Sec. 507.090. 1 Respondent highway commission contends that the appeal is premature and must be dismissed and that the trial court

Page 705

correctly denied the motion to intervene because neither the motion nor the proposed answer states facts sufficient to come within the mandatory provisions of the intervention statute, Sec. 507.090, paragraph 1.

Respondent contends that the appeal is premature for the reason that a party whose motion to intervene has been denied can appeal only if the judgment forecloses the rights of the party. The question raised is not purely a procedural one. The merits and the procedural question are so interwoven that they must be unraveled at the same time. The solution of the one necessarily determines the other, as a result of which the appeal should not be dismissed as premature. Schumacher v. Schumacher, Mo.App., 223 S.W.2d 841, loc. cit. 844.

No evidence having been heard on the motion to intervene the issue of intervention must have been determined on the face of the pleadings. From the pleadings it appears that appellant town bases its right to intervene upon these allegations: that the public interest, safety and welfare of the citizens of the municipality, of the town itself, and of St. Louis County are involved; that Ordinance No. 15 of the town will be violated and its validity drawn into question and that the town will be bound by a judgment or order in the action adversely affecting these interests and that the representation by the actual parties to the condemnation proceeding is likely to be wholly inadequate.

The mandatory paragraph of the intervention statute, Sec. 507.090, follows:

'1. Upon timely application anyone shall be permitted to intervene in an action

'(1) When a statute confers an unconditional right to intervene; or

'(2) When the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; or

'(3) When the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof.'

These provisions have no application to this appellant in this proceeding for the following reasons:

Research reveals no statute conferring upon a municipal corporation an unconditional right to intervene in a condemnation action between the state at the relation of the highway commission and the owners of the private property located within the municipality. Subparagraph (1) therefore has no application.

There is no 'property in the custody of the court or of an officer thereof' to be distributed or disposed of to the prejudice of appellant in this proceeding. Subparagraph (3) therefore has no application.

The only remaining subparagraph under which appellant can claim an absolute and unconditional right to intervene is subparagraph (2) but in the instant situation neither of the conditions exists which must be present in order for it to apply. Appellant has no 'interest' in the proceeding entitling it to representation. The object and purpose of this proceeding is to acquire certain lands and rights for highway...

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5 practice notes
  • Sunland Park v. Santa Teresa Services, No. 22,435.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • 2 Junio 2003
    ...571 N.E.2d at 1115; City of Crystal Lake, 76 Ill.Dec. 728, 459 N.E.2d at 643; see also State ex rel. State Highway Comm'n v. Hudspeth, 303 S.W.2d 703, 705 (Mo.Ct.App.1957) (per curiam) (municipality had no right to intervene in condemnation action based on its assertion that the public inte......
  • City of St. Joseph v. Hankinson, No. 45803
    • United States
    • Missouri Supreme Court
    • 10 Marzo 1958
    ...Bank & Trust Co. v. City of Pine Lawn, 365 Mo. 666, 285 S.W.2d 679, 685; State ex rel. State Highway Commission v. Hudspeth, Mo.App., 303 S.W.2d 703. In this instance we feel that we should consider the constitutional questions, thus accepting These are, briefly: that Sec. 71.015 delegates ......
  • Ozark County School Dist. R-V of Ozark County v. Lay, R-V
    • United States
    • Court of Appeal of Missouri (US)
    • 4 Junio 1962
    ...neither clause (1) nor clause (3) could have any application [cf. State ex rel. State Highway Commission of Mo. v. Hudspeth, Mo.App., 303 S.W.2d 703, 705] so, of necessity, the corporation must depend upon clause (2) permitting, upon timely application, intervention as a matter of right 'wh......
  • Ratermann v. Ratermann Realty & Inv. Co., No. 30541
    • United States
    • Court of Appeal of Missouri (US)
    • 20 Diciembre 1960
    ...may seek to bring into the case, State ex rel. State Highway Commission v. Hudspeth, Mo., 297 S.W.2d 510, appeal transferred Mo.App., 303 S.W.2d 703. See also Pine Lawn Bank & Trust Co. v. City of Pine Lawn, 365 Mo. 666, 285 S.W.2d 679; State ex rel. Farmers Mutuals Automobile Insurance Com......
  • Request a trial to view additional results
5 cases
  • Sunland Park v. Santa Teresa Services, No. 22,435.
    • United States
    • New Mexico Court of Appeals of New Mexico
    • 2 Junio 2003
    ...571 N.E.2d at 1115; City of Crystal Lake, 76 Ill.Dec. 728, 459 N.E.2d at 643; see also State ex rel. State Highway Comm'n v. Hudspeth, 303 S.W.2d 703, 705 (Mo.Ct.App.1957) (per curiam) (municipality had no right to intervene in condemnation action based on its assertion that the public inte......
  • City of St. Joseph v. Hankinson, No. 45803
    • United States
    • Missouri Supreme Court
    • 10 Marzo 1958
    ...Bank & Trust Co. v. City of Pine Lawn, 365 Mo. 666, 285 S.W.2d 679, 685; State ex rel. State Highway Commission v. Hudspeth, Mo.App., 303 S.W.2d 703. In this instance we feel that we should consider the constitutional questions, thus accepting These are, briefly: that Sec. 71.015 delegates ......
  • Ozark County School Dist. R-V of Ozark County v. Lay, R-V
    • United States
    • Court of Appeal of Missouri (US)
    • 4 Junio 1962
    ...neither clause (1) nor clause (3) could have any application [cf. State ex rel. State Highway Commission of Mo. v. Hudspeth, Mo.App., 303 S.W.2d 703, 705] so, of necessity, the corporation must depend upon clause (2) permitting, upon timely application, intervention as a matter of right 'wh......
  • Ratermann v. Ratermann Realty & Inv. Co., No. 30541
    • United States
    • Court of Appeal of Missouri (US)
    • 20 Diciembre 1960
    ...may seek to bring into the case, State ex rel. State Highway Commission v. Hudspeth, Mo., 297 S.W.2d 510, appeal transferred Mo.App., 303 S.W.2d 703. See also Pine Lawn Bank & Trust Co. v. City of Pine Lawn, 365 Mo. 666, 285 S.W.2d 679; State ex rel. Farmers Mutuals Automobile Insurance Com......
  • Request a trial to view additional results

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