State ex rel. State Highway Commission v. Klipsch
| Decision Date | 08 May 1967 |
| Docket Number | No. 1,No. 51994,51994,1 |
| Citation | 414 S.W.2d 783 |
| Parties | STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. Frank KLIPSCH, Jr., et al., on Exceptions of Maroon Brothers, Inc., aCorporation, Defendant-Respondent |
| Court | Missouri Supreme Court |
Robert L. Hyder, Jefferson City, C. J. McEnery, Jr., Kirkwood, for plaintiff-appellant.
Louis A. Robertson, Robertson, DeVoto & Wieland, St. Louis, William L. Mason, Jr., Galena, for respondent.
This is a condemnation proceeding brought by the State of Missouri at the relation of the State Highway Commission of Missouri to acquire a right-of-way for the construction and maintenance of Interstate Route 55 in St. Louis County, Missouri. The parties will be referred to as plaintiff and defendant. A tract of defendant's land was condemned for the right-of-way. The commissioners appointed by the court awarded the defendant the sum of $66,968 which sum was withdrawn from the registry of the court by the defendant. Both plaintiff and defendant filed exceptions to the award. At the trial witnesses for the defendant testified his damages were in varying amounts--i.e.: $160,000--$140,000--$121,000 and $111,165.12. The plaintiff's witnesses testified defendant's damages were in the amounts of $37,300 to $39,800. The jury returned a verdict of $50,000 and judgment was entered thereon allowing the plaintiff a recovery in the amount of $16,968 with interest thereon at six per cent from the date the defendant withdrew from the court the award of the commissioners. This latter figure represents the amount the commissioners' award was in excess of the jury's verdict. Because of the amount in dispute we have jurisdiction.
This same cause was previously tried and on appeal in this court was reversed and remanded for error in the improper admission of certain evidence. State ex rel. State Highway Commission v. Klipsch, Jr., et al., Mo.Sup., 392 S.W.2d 287. The defendant, on November 4, 1965 filed a motion for new trial, coupled with the affidavits of certain jurors. These affidavits concerned conduct of certain jurors during the trial recesses and during their deliberations. The motion for new trial assigned ten grounds as a basis for a new trial. Assignment number one was that the verdict is against the weight of the evidence and assignment number two was that the verdict is inadequate. For the purpose of this opinion it is not necessary to set forth the other assignments of error.
Thereafter and on January 27, 1966, the following order was entered by the trial court:
'Motion of defendant for a new trial heretofore filed, argued and submitted is now by the court, after a further examination of the record and the law involved, sustained.
(Signed) D. L. C. Jones, Judge.'
Thereafter, on January 28, 1966, the following order was entered by the court:
'On Court's own motion, entry of 26 (sic) January 1966 corrected by inserting the words 'on all grounds, pursuant to Supreme Court Rule 78.01' following the last word, to-wit: 'sustained.'
(Signed) D. L. C. Jones, Judge.'
Plaintiff appealed from the order granting the defendant a new trial. The plaintiff filed a statement with this court refusing to file the first brief on appeal unless ordered to do so. The reason stated being that the new trial order did not specify the ground or grounds upon which the new trial was granted, since certain grounds in said motion preserved nothing for review and further that one of the grounds in the motion for a new trial had heretofore been ruled adversely to the defendant on the first appeal. Subsequently, and on the 10th day of October, 1966, this court ordered the plaintiff to prepare the first brief on appeal.
The plaintiff has briefed and argued six propositions challenging the validity of the trial court's order; however for the purpose of this opinion it is only necessary that we set forth one of them.
Plaintiff contends the order in its form does not indicate that the new trial was granted on any discretionary grounds contained in defendant's motion because the court's order purports to sustain said motion on all grounds stated in the motion (see Civil Rule 83.06(c)); that said motion contains an allegation of error previously held by this court on the first appeal to be proper; that the motion stated an allegation of error which preserved nothing for review. Therefore the trial court's order is against the law of the case and is not an exercise of discretion, or, if an exercise of discretion, it is an abuse of discretion.
Section 510.330, V.A.M.S., and Civil Rule 78.01, V.A.M.R., provide in part as follows:
The trial Court's order stated the motion for new trial was sustained 'on all grounds.' One of the grounds in the motion was that the verdict is against the weight of the evidence. A second ground was the verdict is inadequate.
This court in the very recent case of Ray v. Bartolotta, Mo.Sup., 408 S.W.2d 838, has ruled that these two grounds of error are equivalent in legal intendment. In the course of the opinion this court stated at l.c. 839:
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