State of Missouri ex rel. v. Brown et al.

• Citation: 95 S.W.2d 661
• Decision Date: 25 May 1936
• Docket Number: No. 18332.,18332.
• Parties: STATE OF MISSOURI EX REL. STATE HIGHWAY COMMISSION OF MISSOURI, RESPONDENT, v. C.P. BROWN, ET AL., DEFENDANTS, CARLISLE INVESTMENT COMPANY, ET AL., APPELLANTS.
• Court: Missouri Court of Appeals

95 S.W.2d 661

STATE OF MISSOURI EX REL. STATE HIGHWAY COMMISSION OF MISSOURI, RESPONDENT, v. C.P. BROWN, ET AL., DEFENDANTS, CARLISLE INVESTMENT COMPANY, ET AL., APPELLANTS.

No. 18332.

Kansas City Court of Appeals. Missouri.

May 25, 1936.

Rehearing denied, June 15, 1936.

Appeal from the Circuit Court of Jackson County. — Hon. C. Jasper Bell, Judge.

AFFIRMED.

Louis V. Stigall, Wilkie B. Cunnyngham, John B. Pew and Rufus Burrus for respondents.

Meredith & Harwood and John F. Thice for appellant.

REYNOLDS, C.

This is a proceeding by the State Highway Commission, filed in the Circuit Court of Jackson County at Independence, for the condemnation and appropriation of a certain tract or tracts of land owned by the defendant Carlisle Investment Company, a corporation, for road purposes, which tract or tracts were encumbered by a deed of trust securing the payment of a note executed to the defendant Safety Savings and Loan Association by the defendant Carlisle Investment Company, in which deed of trust the defendant Landry Harwood was named trustee.

Upon the filing of the petition in condemnation, the defendants Carlisle Investment Company and Safety Savings and Loan Association, together with other defendants named in said petition, were duly notified by summons of the filing of the same and were required to answer the same before the judge of said court on September 28, 1931. On said date commissioners were duly appointed to assess the damages to the defendants named as the owners thereof by reason of the appropriation of the land sought to be condemned, who assessed such damages at the sum of $2250 and made due report of their proceedings and of such assessment. In said report, the defendant Carlisle Investment Company was named as the owner of the land condemned; and the defendants Safety Savings and Loan Association and Landry Harwood, trustee, also Charles D. Carlisle and Walter J. Mayer were named as parties claiming some interest therein.

Upon the filing of the commissioners' report in the clerk's office of said court, the defendants were each duly notified of such filing. The defendant Carlisle Investment Company thereupon filed exceptions to said report, as likewise did the plaintiff Highway Commission, which were afterwards tried by a jury.

The damages assessed by the commissioners in said sum of $2250 were paid by the plaintiff State Highway Commission, into court; and thereafter, the defendants Carlisle Investment Company, Safety Savings and Loan Association, and Landry Harwood, trustee, joined in a motion for an order of the court permitting the withdrawal by them of such damages and directing the payment of the same to them by the clerk. The order was made, and the clerk of the court accordingly paid the same to all of said defendants jointly, and the defendant Safety Savings and Loan Association duly released the lands condemned from the operation of its deed of trust.

It does not appear that the defendants Safety Savings and Loan Association and Landry Harwood, or either of them, made or filed any exceptions to the report of the commissioners or that they personally appeared before the judge of the court on the return day of the summons which had been served upon them, to-wit on September 28, 1931, on the appointment of such commissioners. Just what division of the damages withdrawn by the defendants was made between them or what part thereof was separately retained by each does not appear in the record.

Afterward, upon the trial before a jury of the exceptions to the commissioners' report, a verdict was returned, finding the issues for the State Highway Commission and finding that the defendant Carlisle Investment Company had sustained no damages. It failed to assess any damages in favor of the defendant Safety Savings and Loan Association. It does not appear whether the cause was tried upon the exceptions filed by the State Highway Commission or upon the exceptions by the defendant Carlisle Investment Company or both. It does not appear that either of the defendant Safety Savings and Loan Association or Landry Harwood, trustee, personally appeared and took any part in the trial of such exceptions before the jury. Upon the return of such verdict, the court, without any further or special notice to the defendants, entered its final judgment in favor of the plaintiff, State Highway Commission, that it recover from the defendants Carlisle Investment Company, Landry Harwood, trustee, and Safety Savings and Loan Association the sum of $2250 (the damages paid into court by the plaintiff upon the filing of the commissioners' report and afterward withdrawn by defendants) together with the costs.

The defendant Carlisle Investment Company within due time filed a motion for new trial. The defendant Safety Savings and Loan Association, purporting to appear for that purpose alone, filed, during the term, its motion to set aside and vacate the judgment for the reasons (1) that the court erred in entering a judgment in personam against it on constructive service when it had never appeared personally or by attorney before the commissioners or in the circuit court upon the trial, (2) that entry of such judgment in personam against it was not done in due process of law but was in violation of Section 30, Article 2 of the Constitution of Missouri and of Section 1 of the Fourteenth Amendment to the Constitution of the United States, (3) that the evidence was insufficient to warrant the judgment in personam against it, (4) that the defendant had never filed any exceptions to the report of the commissioners and had accepted such report as final; and for the further reason that the order of the court directing the payment of the damages assessed by the commissioners to it and defendant Carlisle Investment Company was final as to the amount of such damages and the payment thereof and was a final adjustment of such questions. It does not appear that either the motion for new trial upon the part of the Carlisle Investment Company or the motion of the defendant Safety Savings and Loan Association to vacate the judgment was determined at the term of court at which the trial was had and the judgment rendered; but it does appear that both were under general orders continued to the March term, 1934, of the court, at which term both were disposed of adversely to the defendants.

This is a joint appeal by the defendants Carlisle Investment Company (hereinafter called the defendant investment company), Charles D. Carlisle, and Safety Savings and loan Association (hereinafter called the defendant loan association) from the judgment entered against them and from the order of the court overruling the motion for a new trial and the motion in arrest of judgment. However, the record does not show that any motion in arrest of judgment was ever filed by any of the defendants or any action had upon such a motion by the court.

OPINION.

1. The defendants make numerous assignments of error and points in their brief to the effect that the judgment of the trial court for the restitution by the defendants loan association and Landry Harwood, trustee, of the damages assessed by the commissioners' report and paid into court by the plaintiff and withdrawn by such defendants jointly with the defendant investment company was not due process of law and was in violation of Section 30 of Article 2 of the Constitution of the State of Missouri and the violation of Section 1 of the Fourteenth Amendment to the Constitution of the United States.

So far as the appellate jurisdiction of this court is concerned, it has none where a question involving the construction of a constitutional provision is properly lodged in the record and properly preserved for appellate review. In such case, appellate jurisdiction is in the Supreme Court. In order to deprive this court of jurisdiction, it must appear that such question was properly raised in the trial court at the first opportunity therefor and that it has been properly preserved for appellate review. It is not sufficient that such questions be raised for the first time in the brief upon appeal. [Miller v. Connor, 250 Mo. 677, 157 S.W. 81.]

Such assignment and points made upon the appeal in this court, so far as they invite the construction of such constitutional provisions as matters involved in the determination of any issue herein, appear to be based upon questions first raised in the motion of the defendant loan association in the trial court to vacate and set aside the judgment complained of against it, wherein it challenges such judgment as having been rendered without due process of law and in violation of the constitutional provisions mentioned in certain particulars set out.

2. Among the first matters, therefore, for determination is the status of such constitutional questions, so far as they depend for lodgment in this case upon the motion filed by the defendant loan association in the trial court to vacate and set aside such judgment, and is whether, by and through such motion, such constitutional questions have been timely raised and properly preserved for review upon appeal.

It will be noticed that such motion, while filed during the term in which the judgment was entered, was not filed until December 2, 1933, which was more than four days after the date upon which the judgment was rendered. The judgment appears to have been rendered November 17, 1933.

The motion, to be serviceable as a motion for a new trial or as a motion in arrest of judgment, was required to be filed within four days after the rendition of the judgment; otherwise, it operated only as a suggestion to the court that the judgment be set aside by the court and a new trial granted, upon its own motion, which, if not acted upon by the court at the term at which it was filed, died with the expiration of such term. [Marsala v. Marsala, 288 Mo. 501, 232 S.W. 1048; State ex rel. Conant v. Trimble, 311 Mo. 128, 277 S.W....