State ex rel. State Highway Commission of Mo. v. Hudspeth
| Decision Date | 14 June 1957 |
| Docket Number | No. 29798,29798 |
| Citation | 303 S.W.2d 703 |
| Parties | 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. |
| Court | Missouri Court of Appeals |
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 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) 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 purposes and to fix or determine the price at which the highway commission can take the property and rights sought. City of St. Louis v. Dietering, Mo.App., 27 S.W.2d 711. The judgment sought is one which will establish the damages and permit the highway commission to acquire the property by paying the amount thus established to the landowners or into court for them. Its purpose is not to establish the route or authorize construction. Appellant town would not be affected or bound by the judgment, unless it had some interest in or right or title to the property involved. Neither in its motion nor in its proposed answer does appellant allege or claim any right, title or interest in any of the property sought to be condemned. If appellant town has a justiciable interest in the protection of the 'lives, property, safety and general welfare' of its citizens arising out of the manner in which it is proposed that the highway be constructed, the assertion of that interest in this proceeding would be inappropriate. If it could be shown that appellant had such an interest or a legally enforceable right that would be prejudiced by the construction of the highway it would not follow that such interest or right would be affected by the mere acquisition of the right of way or the entry of a judgment fixing the price tag. The lives, property, safety and general welfare of the citizens of the town could not be in any manner affected by the latter proceedings. Appellant would not be 'bound by a judgment in the action' for yet another reason, namely, that it was not a party thereto. Pine Lawn Bank & Trust Co. v. City of Pine Lawn, Mo.Sup., 285 S.W.2d 679, loc. cit. 685. Furthermore, the 'representation of the applicant's interest' referred to in subparagraph (2) relates to representation with respect to an issue in the case and not to new issues which the applicant desires to bring into the case. Applicants to intervene may not inject new issues foreign to the issues in the original action. Pine Lawn Bank & Trust Co. v. City of Pine Lawn, supra. Appellant was not entitled to be represented with respect to the issues contained in its proposed answer because those issues were new and not within the ambit of the pleadings of the original parties. Appellant has not shown any relationship to the pending controversy that would entitle it to a right to intervene under the mandatory provisions of the intervention statute.
Nor can we say that appellant's asserted interest can be preserved or enforced only by permitting intervention in the pending cause. See City of St. Louis v. Silk, 239 Mo.App. 757, 199 S.W.2d 23,...
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