The State ex rel. St. Louis, Keokuk & Northwestern Railway Co. v. Klein

• Decision Date: 06 July 1897
• Citation: 41 S.W. 895,140 Mo. 502
• Parties: The State ex rel. St. Louis, Keokuk & Northwestern Railway Company v. Klein et al., Judges
• Court: Missouri Supreme Court

41 S.W. 895

140 Mo. 502

The State ex rel. St. Louis, Keokuk & Northwestern Railway Company v. Klein et al., Judges

Supreme Court of Missouri

July 6, 1897

Peremptory writ awarded.

John H Drabelle and E. S. Robert for relator.

(1) By virtue of this alleged judgment we can never have execution to collect the sum due; nor will that amount ever draw interest by virtue of this alleged judgment; nor can the clerk ever index the same as a judgment by force of this alleged judgment; nor can a lien ever arise by virtue of it but all of these essential attributes of a judgment given as a matter of right by the statutes are to arise by virtue of an order which may or may not be made in the future. Baker v. State, 3 Ark. 491; Burk v. Tailor Mound & Co., 12 Cal. 408; Davidson v. Carroll, 23 La. Ann. 108; Canal County v. Beers, 1 Black. 54; Baldwin v. Foss, 14 Neb. 455. (2) What is meant by a final judgment is that it is final so far as the court which rendered it is concerned. State v. Sutterfield, 54 Mo. 394; Hill v. Young, 3 Mo. 338; Railroad v. Railroad, 94 Mo. 542; Williams v. Conroy, 52 Cal. 414; Dillon v. Insurance Co., 44 Md. 386; Harris v. Hauser, 26 W.Va. 595; Hamlitt v. Simms, 44 Ark. 141; Dickinson v. Corwin, 11 Paige, 191; Williamson v. Field, 2 Barb. Ch. 281; Chittenden v. Society, 8 How. Pr. 327; Williams v. Field, 2 Wis. 421; School Dist. v. Kemen, 68 Wis. 246; Wilson v. Daniel, 3 Dallas, 401; Ins. Co. v. Wilson, 8 Peters, 291; Whitaker v. Bramson, 2 Paine, 209. (3) This court will compel the entry of an ordinary common law judgment when the court below has exercised its right to determine all of the facts essential to that judgment, and the entry of a proper judgment is a mere ministerial act, in nowise affecting the discretion of the lower court. State ex rel. v. Philips, 97 Mo. 331; State ex rel. v. Tracey, 94 Mo. 217; State ex rel. v. Lewis, 71 Mo. 172; Vernon v. Boggs, 1 Mo. 116, 274; Pettigrew v. Washington Co., 43 Ark. 33; McCrary v. Rodgers, 34 Ark. 298; County of Boone v. Todd, 3 Mo. 140; Beck v. Jackson, 43 Mo. 117; State ex rel. v. County Court, 44 Mo. 230.

Rowell & Ferriss and Joseph S. Laurie for respondent.

(1) Relator has no title or right to the relief sought. It is a fundamental principle underlying every application for a writ of mandamus that the applicant must show "a clear legal right to have the thing done which he asks for." Merrill, Mand., sec. 56; Spelling Extr. Rel., sec. 1369; High, Extr. Leg. Rem., sec. 10; State ex rel. v. Francis, 95 Mo. 44; Rothan v. Railroad, 113 Mo. 132; Railroad v. Fowler, 113 Mo. 458; Railroad v. Clark, 119 Mo. 357; Snyder v. Cowan, 120 Mo. 389; Railroad v. Clark, 121 Mo. 169; Railroad v. Eubanks, 130 Mo. 271; Hook v. Railroad, 133 Mo. 313; Kansas City v. Ward, 134 Mo. 172. (2) An appeal has been taken from the judgment rendered and the same is now pending. It is a sufficient return to the alternative writ directing the entry of a judgment that the cause has been removed by appeal beyond the jurisdiction of the court to which the writ is directed, since the appeal deprives such court of the jurisdiction to act in the case. High, Extr. Leg. Rem., sec. 236; Board of Commissioners v. Cutler, 7 Ins. 6; State ex rel. v. Livsey, 42 N.W. 762; 14 Am. and Eng. Ency. Law, p. 111; Weeks on Jur., p. 150; Burgess v. O'Donoghue, 90 Mo. 301; DeKalb Co. v. Hixon, 44 Mo. 341; Stewart v. Stringer, 41 Mo. 401; Ladd v. Couzins, 35 Mo. 513. (3) The judgment is final and therefore reviewable by appeal or writ of error; hence, mandamus will not lie. State ex rel. v. Neville, 110 Mo. 345; Wells, Res. Adj., sec. 441; Moody v. Deutsch, 85 Mo. 237; Rogers v. Gosnell, 51 Mo. 466; Black v. Rogers, 75 Mo. 441; Bank v. Reilly, 8 Mo.App. 544; Bank v. Sheffey, 140 U.S. 445; Railroad v. Express Co., 108 U.S. 24; Iron Co. v. Meeker, 109 U.S. 180; Howland v. Railroad, 134 Mo. 474. (4) It is not the office of a writ of mandamus to undo what has already been done, or rectify judicial errors, or substitute the conclusion of law of the superior court for that of an inferior court, or to direct a particular judgment. State ex rel. v. Smith, 105 Mo. 6; State ex rel v. Neville, 110 Mo. 345; State ex rel. v. Young, 84 Mo. 90; State ex rel. v. Flad, 108 Mo. 614; State ex rel. v. Cramer, 96 Mo. 75; State ex rel. v. Gregory, 83 Mo. 123, 136; State ex rel. v. Court of Appeals, 87 Mo. 374; State ex rel. v. Wilson, 49 Mo. 146; Ex parte Morgan, 114 U.S. 174; Ex parte Perry, 102 U.S. 183.

Macfarlane, J. Barclay, J., does not sit.

OPINION

In Banc.

Mandamus.

Macfarlane J.

-- This is an original proceeding by mandamus, the object of which is to require respondents, as judges of the St. Louis Circuit Court, to enter a final judgment in favor of relator and against William G. Clark in a certain condemnation proceeding by said relator against the said Clark, which had been heard and determined by said court.

An alternative writ of mandamus was issued and respondent Flitcraft, judge of division 2 of said circuit court, has made return thereto. Without copying the writ or return we will briefly state the facts as disclosed therein. In 1890 the relator, the St. Louis, Keokuk & Northwestern railroad company, commenced a proceeding against one William G. Clark and others to condemn, for right of way for its railroad, certain land of the defendants. Commissioners were duly appointed to assess the compensation to which defendants were entitled and afterward, on June 20, 1891, they filed their report awarding to Clark $ 87,510. June 29, 1891, the railroad company paid into court for Clark the amount of the award and took possession of the land. On the twenty-fourth day of October, 1891, on motion of Clark, the clerk of the court was ordered to invest the fund at four per cent per annum. On the sixth of January, 1894, on motion of Clark, the clerk was ordered to and did pay over to him the said sum of $ 87,510 with accumulated interest, $ 7,691.25, making a total of $ 95,201.25, which amount he still retains. To the award of the commissioners both parties excepted and a trial by jury was ordered. On May 6, 1895, a verdict was rendered by a jury assessing Clark's damages at $ 47,900. Clark filed a motion for a new trial which was overruled on the fifth day of April, 1897. On April 21, 1897, the railroad filed a motion asking for a judgment against Clark for $ 39,610, being the difference between the commissioners' award and the verdict; also for the four per cent interest earned on said sum when it was actually deposited before it was delivered to Clark, and also for six per cent interest on said amount from the date that Clark received the same. On May 18, 1897, Judge Flitcraft overruled said motion for judgment in favor of the railroad and against Clark; also overruled the relator's motion for a rehearing, and on the eighteenth day of May, 1897, entered the following order, which, in his return, he claims is a judgment:

"Now again come the parties, namely, the plaintiff, the St. Louis, Keokuk & Northwestern Railroad Company, by its attorneys and counsel, Messrs. John H Drabelle and E. S. Robert, and the defendant, William G. Clark, by his attorneys and counsel, Messrs. Rowell & Ferriss, and John P. P. Ellis, Esq., and the cause coming on to be tried upon the exceptions of both parties hereto to the report of the commissioners herein as to the award and assessment of damages made by the said commissioners as the compensation to which the said defendant is entitled for the land belonging to him, and which the plaintiff has taken and appropriated for railroad purposes, as well as the damages sustained by him by reason of such appropriation, and the court having heretofore, at the request of the said defendant, issued a venire for a special jury to try the issue involved in said exceptions; and the jurors summoned under the said venire having appeared in court, and having been duly examined on their voir dire by the parties, the following named persons, being twelve good and lawful men, were accepted, chosen and sworn as the special jury in this cause to try the said issue. [Here follow the names of the jurors.] Thereupon the trial of said cause having been concluded, the said jurors returned to the court their verdict in words and figures following, viz.: 'We, the jury, find that the defendant William G. Clark, has been damaged by reason of the appropriation by plaintiff of the strip of ground firstly described in the petition for the purposes of its railroad, and assess his damages at the sum of forty-seven thousand, nine hundred dollars.

"'A. O. Terry, Foreman.'

"And it appearing to the court that the commissioners herein awarded to the said defendant Clark the sum of eighty-seven thousand, five hundred and ten dollars ($ 87,510) as the compensation to which he was entitled for his property to be taken and damaged by the plaintiff, and that plaintiff heretofore, on the twenty-ninth day of June, 1891, paid the sum of eighty-seven thousand, five hundred and ten dollars into the court for the said defendant Clark, and thereupon entered upon and took possession of his said property. And it further appearing to the court that thereafter, on the sixth day of January, 1894, the said defendant Clark under an order of the court received the said sum of eighty-seven thousand, five hundred and ten dollars ($ 87,510), together with the further sum of $ 7,691.25 interest earned thereon while the said sum remained in the registry of the court, and has ever since retained the same; it is considered, adjudged and decreed by the court, as follows:

"First. That the compensation to which the said defendant, Wm. G Clark, is entitled for the land taken and appropriated by the plaintiff herein, and more fully described, as follows, viz.: ...