The State ex rel. Scott v. Trimble

• Decision Date: 13 April 1925
• Docket Number: 25662
• Citation: 272 S.W. 66,308 Mo. 123
• Parties: THE STATE ex rel. LEWIS A. SCOTT et al. v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

272 S.W. 66

308 Mo. 123

THE STATE ex rel. LEWIS A. SCOTT et al. v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals

No. 25662

Supreme Court of Missouri

April 13, 1925

Record quashed.

Franken & Timmons for relators.

(1) If the opinion of the Court of Appeals conflicts with the general rules of law as announced by this court, the record will be quashed on certiorari. It is not necessary that precisely the same questions be involved, but it is only necessary that the conflict arises on similar facts and similar principles. State ex rel. Ins. Co. v. Allen, 295 Mo. 316; State ex rel. Continental Ins. Co. v Reynolds, 235 S.W. 88; State ex rel. v Vulgamott, 253 S.W. 1014. (2) The decision of the Court of Appeals that the judgment of the Carroll Circuit Court confirming the commissioners' report in the drainage proceeding was a personal judgment in favor of Minnie H Clinkscales, in so far as the same affected the lands in which she owns a life estate, is in conflict with the rule of law announced by this court in Troegor v. Roberts, 284 Mo. 363. A proceeding to assess benefits and damages under Art. 1, Chap. 28, R. S. 1919, is a proceeding strictly in rem and the damages awarded must be paid to the actual owner of the real estate at the time of its appropriation. The Drainage Act is a code complete within itself and must be construed without reference to the general law applicable to condemnation proceedings. Mississippi & Fox River Drainage District v. Ackley, 270 Mo. 173; State ex inf. McAllister v. Norborne Land Drainage District Co., 290 Mo. 91, 131; In re Big Lake Drainage v. Rolwing, 269 Mo. 169. (3) Under the provisions of Sec. 4405, R. S. 1919, the drainage district had the right, within five years after the rendition of the judgment relied upon by Minnie H. Clinkscales as giving her the absolute right to the money, although she owns only a life estate in the land, to abandon the project entirely. She is relying upon the Carroll Circuit Court judgment and as stated by the Court of Appeals claims the award "upon the ground that under the decree of the Circuit Court of Carroll County she was personally awarded said amount." If her position be correct, then she would have the right to the money although the land was never in fact appropriated. This position is manifestly unsound for the reason that the title does not pass until the appropriation. Since the title to the land does not pass until that time, it becomes apparent that the ownership of the land at the time of the appropriation is an issue at that time, but not at the time the amount of the award is fixed. When the condemning corporation has the right to abandon the proceedings, the judgment fixing the amount of the award is not a personal judgment in favor of the person named in the judgment. The persons who are the actual owners of the property at the time of its actual appropriation are alone entitled to the award. Silvester v. St. Louis, 164 Mo. 601; Land and Imp. Co. v. Kansas City, 293 Mo. 674; Hamilton v Big Medicine Drain. Dist., 261 S.W. 940. (4) The Court of Appeals held that the circuit court had jurisdiction of the parties and the subject-matter and held further that Minnie H. Clinkscales filed exceptions to the report of the commissioners in her own behalf. If this be true, then the remainderman was duly notified of the filing of the commissioners' report and the judgment confirming the same as affecting the lands in which he had an interest was as to him a judgment by default. The Court of Appeals further held that the judgment of the circuit court found her to be the owner of the land. Under said Drainage Act, the ownership of the land condemned and damaged was not in issue, and the court had no power to determine the ownership of the land as between the life tenant and the remainderman when no such issue was raised in the drainage proceeding. Such a finding of ownership was beyond the power of the circuit court, and if its judgment be a judgment deciding who was the owner of the land, then such judgment is that regard is void. Charles v. White, 214 Mo. 187; Drainage District v. Campbell, 154 Mo. 151; Blair v. Blair, 247 Mo. 61; Drainage District v. Turney, 235 Mo. 80. (5) The holding of the Court of Appeals that the answer which pleads that Minnie H. Clinkscales owns only a life estate in the lands with the remainder in the children of Robert Clinkscales constituted a collateral attack upon the circuit court judgment, is in conflict with the rulings of this court in Troeger v. Roberts, 284 Mo. 363; Blair v. Blair, 247 Mo. 61; Drainage District v. Turney, 235 Mo. 80; Charles v. White, 214 Mo. 187; In re Drainage District v. Rolwing, 269 Mo. 161.

Sebree, Jost & Sebree and M. J. Lilly for respondents.

(1) The application for the writ of certiorari was delayed too long, and the temporary writ should be quashed. There was no request to the Court of Appeals to hold the mandate. It appears, therefore, that the respondents sat idly by from May 5th, when their motion for a rehearing was overruled, until June 3rd, and allowed the Court of Appeals to send down its mandate for action of the lower court thereon and its judgment to become a finality, without any notice or request to the Court of Appeals that they intended to apply to this court for a writ, or to stay the mandate until such application could be made. This delay under these facts is unreasonable. State ex rel. v. Ellison, 230 S.W. 973. (2) The answer does not deny the allegations of the petition nor state any defense. Secs. 1232, 1226, R. S. 1919; Boles v. Bennington, 132 Mo. 525, 528; State ex rel. v. Adams, 161 Mo. 349, 363; Equitable Life v. Pettus, 140 U.S. 226. (3) Collateral attack not permissible. Hardin v. Lee, 57 Mo. 241; Halter v. Leonard, 223 Mo. 286; Union Depot Company v. Frederick, 117 Mo. 148; Fitzgerald v. DeSoto Road District, 195 S.W. 697. (4) Mrs. Clinkscales sued in her own name and the petition states a cause of action showing that she is the proper party plaintiff, and the only party entitled to sue for the money. There was no objection either by demurrer or answer that she was not a proper party plaintiff, or that there was a defect of parties. In such case the objection is waived, and her right to sue for and recover the money in her individual name was admitted. Secs. 1226, 1230, R. S. 1919; Johnson v. Railways, 247 Mo. 336; State ex rel. Jones v. Chemical Works, 249 Mo. 702; Baxter v. Transit Company, 198 Mo. 1; Rideout v. Burkhardt, 255 Mo. 116. (5) Under any view of the case, the judgment of the Court of Appeals that Mrs. Clinkscales was the proper party to sue for the money and was entitled to a judgment in her own name as prayed in her petition, is the law and not opposed to any decision of this court. Secs. 4405, 4415, R. S. 1919; Sec. 1156, R. S. 1919, authorizing trustees to sue in their own name; Nicolay v. Fritchie, 40 Mo. 67; Tittman v. Thornton, 107 Mo. 500; Catron v. Lafayette, 106 Mo. 659; Springfield Company v. Weaver, 137 Mo. 650. (6) The opinion written by the Court of Appeals was based on the state of the pleadings in the case before it, and is not in conflict with any of the decisions of this court cited by the relators. (7) The judgment of the Court of Appeals is right and will not be disturbed, even though this court may find that there are expressions in the opinion with which this court does not agree. The opinion is a part of the record, and should this court find parts of it that do not meet it approval, they may be quashed, and the judgment allowed to stand. State ex rel. v. Reynolds, 270 Mo. 589; State ex rel. v. Reynolds, 284 Mo. 372.

Lindsay, C. Seddon, C., concurs.

OPINION

LINDSAY

Certiorari seeking to quash the record of the Kansas City Court of Appeals upon appeal, in the case of State ex rel. Minnie H. Clinkscales, appellant, v. Lewis A. Scott et al., respondents (261 S.W. 680). Relator Lewis A. Scott was the Circuit Clerk of Carroll County, and the other relators were the sureties upon his official bond. The case in the circuit court was determined upon a motion filed by Minnie H. Clinkscales, as plaintiff, for judgment upon the pleadings. The pleadings consisted of the plaintiff's petition and the answer thereto filed by the relators. These pleadings, with the opinion of the Court of Appeals expressly grounded upon them, constitute the record to be reviewed in determination of the question whether there is conflict between the ruling of that court and controlling decisions of this court.

The suit of Minnie Clinkscales was one to recover the principal sum of $ 1500 paid to Lewis Scott, as circuit clerk, under the provisions of Section 4405, Revised Statutes 1919, by the supervisors of a drainage district in Carroll County. That was the sum allowed as the value of the property taken, and damages resultant thereto, in certain lands situated in said drainage district as fixed by the judgment of the circuit court having jurisdiction in said drainage district proceedings. The trial court rendered judgment for the plaintiff in the penal sum of the bond, $ 5000, and adjudged that she have execution in her favor "for herself and as trustee for remainderman under the will of Robert H. Clinkscales, deceased, in the sum of fifteen hundred and thirty dollars" and for costs. The trial court overruled the plaintiff's motion in arrest, and to modify that judgment, and the plaintiff appealed. The Court of Appeals reversed and remanded the cause with direction that "a judgment for $ 5,000 be entered for relator [plaintiff] and that she have execution for $ 1500 with interest from the date of demand."

I. Before going into the main question we take up a contention made for the respondents in opposition to the issuance of the writ, and made...