State ex rel. State Highway Commission v. Demarco

• Decision Date: 09 December 1968
• Docket Number: No. 53501,No. 1,53501,1
• Citation: 434 S.W.2d 552
• Parties: STATE of Missouri ex rel. STATE HIGHWAY COMMISSION, Plaintiff, v. Mike DEMARCO, Exceptions of Estate of W. E. Reed, et al., Movants-Respondents, v. Warren DEAN et al., Respondents-Appellants
• Court: Missouri Supreme Court

Page 552

434 S.W.2d 552

STATE of Missouri ex rel. STATE HIGHWAY COMMISSION, Plaintiff, v. Mike DEMARCO, Exceptions of Estate of W. E. Reed, et al., Movants-Respondents, v. Warren DEAN et al., Respondents-Appellants.

No. 53501.

Supreme Court of Missouri, Division No. 1.

Dec. 9, 1968.

Jenny & Cole, James A. Cole, Union, William A. Moffitt, Jr., St. Louis, for movants-respondents.

Jay White, Rolla, for appellants.

HOUSER, Commissioner.

The state at the relation of the state highway commission filed condemnation proceedings naming the owners of the fee, and the lessee, and Warren E. Dean and wife, who claim to be sublessees of the property, as defendants. The commissioners awarded $78,000 damages without apportionment. The state, the owners and the Deans filed exceptions. These exceptions are still pending and undisposed of. The owners filed a motion for distribution asking for the entire $78,000, denying that any of the other defendants had any right, title or interest in the award. The Deans filed a reply, asserting their interests as sublessees, alleging that an award is not subject to apportionment while exceptions are pending and no final judgment has been entered, and praying that the motion for distribution be denied. Later the Deans filed a request for a jury trial of certain issues developed by the motion and reply, including the question of apportionment. The trial court denied the request for a jury trial, heard the motion for distribution, found that the Deans had no interest in the property entitling them to any part of the commissioners' award, sustained the motion for distribution, and ordered the entire $78,000 distributed to the owners. The motion of the Deans to set aside the judgment not having been ruled on within 90 days, they appealed to this Court.

Prior to the enactment of Laws of Missouri 1965, p. 660 (S.B. 274) an appeal from an order directing that one of several defendants in a condemnation case take all of the commissioners' award, made while exceptions to the award were still pending and undisposed of, would be dismissed as premature, on the ground that there was no final judgment within the meaning of the law. State ex rel. State Highway Comm. v. Mahon, Mo.App., 350 S.W.2d 111. That enactment introduced a new section (523.053), paragraph 2 of which provides in part as follows: 'Any party aggrieved of the determination of interests made by the court (on a motion for distribution) shall have the right of appeal therefrom, and the same shall be considered as a final judgment for such purposes.'

Appellants claim that the Supreme Court has jurisdiction because the amount in dispute exceeds $7,500 (sic) (properly $15,000). They take the position that the amount of the award ($78,000) is the amount in dispute. The amount of the award is not the amount in dispute. Appellants are not claiming the entire amount of the award. They concede that the heirs of W. E. Reed, Deceased, are the owners of the fee simple title to the property; that the fee owners are entitled to their part on a proper apportionment of the award. They claim to be bona fide lessees and that as such they are entitled on apportionment to part of the award. At no place in these proceedings, however, do appellants state what they claim as their damages, or what the value of their interest in the real estate or...