The State ex rel. United Railways Company of St. Louis v. Wiethaupt

• Decision Date: 16 December 1911
• Citation: 142 S.W. 323,238 Mo. 155
• Parties: THE STATE ex rel. UNITED RAILWAYS COMPANY of St. Louis v. JOHN WIETHAUPT et al
• Court: Missouri Supreme Court

142 S.W. 323

238 Mo. 155

THE STATE ex rel. UNITED RAILWAYS COMPANY of St. Louis v. JOHN WIETHAUPT et al

Supreme Court of Missouri

December 16, 1911

Writ awarded.

Boyle & Priest, J. C. Kiskaddon and T. M. Pierce for relator.

(1) The circuit court did not by appeal acquire jurisdiction of the subject-matter of the petition of said McDermott Realty Company and John W. Bellairs. The appeal of said petitioners from the judgment of the county court purported to be taken by virtue of section 10440, Revised Statutes 1909. This section first appeared in the road law in Laws 1874, p. 142 section 39. Prior to that time no appeal would lie in road cases. Aldridge v. Shears, 101 Mo. 400. All the road laws scattered through the statutes, including the chapter on bridges, were collected into one act and revised and re-enacted at the revising session of the Legislature in 1909. Laws 1909, p. 727. Some changes were made in the phraseology of this section in the revision of 1909, and the proviso was added to the section, but the subject which might be appealed from was not enlarged. Aldridge v Shears, 100 Mo. 406. This, then, is the test, that the law as an act pertaining to that subject makes its own provisions in respect of appeals. Dittman v Moeller, 143 Mo.App. 720; Mayes v. Palmer, 206 Mo. 303; Tie Co. v. Drainage Co., 226 Mo. 441; Drainage Dist. v. Railroad, 216 Mo. 715; Big Hollow Road, 111 Mo. 326. That an appeal will not lie from an inferior to a superior tribunal except from a judgment from which an appeal is expressly allowed by statute is decided in the following cases: Flick v. Schenk, 212 Mo. 375; Looney v. Browning, 112 Mo.App. 195; Morris v Morris, 128 Mo.App. 673; Baker v. Schoeneman, 41 Mo. 391; State ex rel. v. Fowler, 108 Mo. 465; Breed v. Hobart, 187 Mo. 140; State ex rel. v. Guinotte, 113 Mo.App. 399. It follows that if no appeal lay from the county to the circuit court from a judgment denying the petitioners' prayer for the opening of an alleged way of necessity, then the circuit court did not have jurisdiction of the subject-matter, had no power or authority to hear the case anew or otherwise, nor any authority to order the county court to proceed in a cause in which it had already rendered final judgment, and when the county court proceeded to obey the void order of the circuit court it was exceeding its jurisdiction and should be stopped by having the present writ made peremptory. (2) Relator's appeal with supersedeas bond from the judgment of the circuit court suspended that judgment and no proceeding can be had under it tending to its enforcement pending the appeal. Parker v. Railroad, 44 Mo. 418; Pratt v. Canfield, 67 Mo. 48; State ex rel. v. Klein, 137 Mo. 679; State ex rel. v. Hirzel, 137 Mo. 443; State ex rel. v. Lewis, 76 Mo. 370; Foster v. Rucker, 26 Mo. 495; Ketchum v. Thatcher, 12 Mo.App. 189; State ex rel. v. Ransom, 86 Mo. 327. The county court heard the case and decided it against the petitioners, rendering judgment accordingly. From this final judgment petitioners appealed to the circuit court. If the circuit court had jurisdiction the only question it could try was whether or not petitioners were entitled to a way of necessity. The circuit court found they were, and this was as final as the circuit court could make it. It will be noted that the circuit court did not remand the case to the county court for a new trial. It found and adjudged as a finality that petitioners were entitled to a way of necessity and peremptorily commanded the county court to proceed with the condemnation of relator's property. There was to be no more trial of the question whether or not petitioners were entitled to a way of necessity. When the county court had proceeded in obedience to the command of the circuit court, all that relator could subsequently appeal from was from an assessment of damages. The right to a way of necessity had been finally and conclusively determined. This is a final judgment.

B. L. Matthews and Joseph C. McAtee for respondents.

It is apparent from reading section 10440, Revised Statutes, 1909, that the Legislature intended that in road matters final judgments could only be entered by the county court. The power of the circuit court is limited, as it expressly prohibits it from appointing commissioners, and the appointment of commissioners is merely interlocutory -- likewise the qualifications of the commissioners and their assessment of damages. The final judgment can only be made when the amount assessed has been paid into the county treasury for the use and benefit of the owner of land appropriated. This is provided by section 10454, Revised Statutes, 1909. The language of this section is specially significant. It provides "if any owner of real estate against whom final judgment has been given as designated in the preceding section," showing clearly that the final judgment contemplated shall be made after the appointment of commissioners and the expiration of the time allowed for fencing. It has been repeatedly held in Missouri and other jurisdictions that the appointment of commissioners in a condemnation proceeding is merely interlocutory and in no sense a final judgment. It has also been held in Missouri that the decision of a nisi prius court upon the nature and character of the proposed use is likewise merely interlocutory. It is pertinent at the outset to ask the question, "what is a final judgment?" A large number of definitions can be given. A final judgment must appear to be in favor of one party and against the other. It must purport to be the actual and absolute sentence of the law as distinguished from a mere finding that one of the parties is entitled to a judgment. Black on Judgments, sec. 3; State v. Sutterfield, 54 Mo. 394; Railroad v. Railroad, 94 Mo. 542; Stickler v. Tracy, 66 Mo. 465. A judgment, though upon the merits or determining some substantial right, which leaves necessary further judicial action before the rights of the parties are settled, is not final. 1 Freeman on Judgments, sec. 16; State ex rel. v. Klein, 140 Mo. 510; State ex rel. v. Woodson, 128 Mo. 513; Railroad v. Express Co., 108 N.C. 24; Pfeifer v. Crane, 89 Ind. 485. The rule that an appeal lies only from a final judgment, order or decree, seems to prevail throughout the states; and that it cannot be taken upon an interlocutory order unless expressly allowed by statute. A judicial decision is essential as the foundation of an appeal. Powell, Appellate Procedure, sec. 367. The policy of the laws of the several states and of the United States, is to prevent unnecessary appeals. The appellate courts will not review cases by piecemeal. The interests of litigants require that cases should not be prematurely brought to the higher courts. The errors complained of may be corrected in the courts in which they originated; or the party injured might, notwithstanding the injury, have final judgment in his favor. If a judgment, interlocutory in its nature, were the subject of appeal, each of said judgments rendered in the case could be brought before the appellate courts, and litigants harassed by useless delay and expenses and the courts burdened with unnecessary labor. 1 Freeman on Judgments, sec. 33. Not even by agreement could parties take an appeal to the Supreme Court unless there is a final judgment. Shroyer v. Lawrence, 9 Ind. 322; Wingo v. State, 99 Ind. 343; Elliott on Roads and Streets (3 Ed.), sec. 413; Railroad v. Railroad, 94 Mo. 535. The finding of the circuit court that the property sought to be appropriated from relator constituted a way of necessity, was a decision of but one issue in the case, and consequently not a final determination. Express authority for this statement is to be found in the case of State ex rel. v. Engelman, 106 Mo. 628; State ex rel. v. Edwards, 104 Mo. 125; Luxton v. North River Bridge Co., 147 U.S. 337; Telephone Co. v. Railroad, 87 Va. 349; Ludlow v. Norfolk, 87 Va. 319. The order of a county court appointing commissioners to ascertain what would be a just compensation to the plaintiff in error for establishing a road across a strip of ground owned by it was not a final order and the appeal therefrom to the circuit court was improvidently awarded and should have been dismissed. Richmond T. & P. R. Co. v. Johnson, 38 S. E. (Va.) 195; Village of St. Johnsville v. Smith, 61 App.Div. N. Y. 380; Railroad v. Newton, 133 N.C. 132; Aull v. Day, 133 Mo. 347; Walker v. Walker, 119 Mo.App. 503. It is plain that relator has misconceived its remedy. Prohibition will not lie in a case of this kind, as any party aggrieved has a full remedy by appeal to the circuit, where the case is tried anew. The action of the county court, therefore, in the present instance, is not a usurpation of judicial authority, but at most error for which the proper remedy of the party aggrieved is by appeal. State ex rel. v. Seay, 23 Mo.App. 623. The county court has power to hear and determine petitions in condemnation proceedings, and while that jurisdiction is statutory and limited, the law provides ample means to prevent its erroneous exercise, as it is settled that appeals lie from its judgments in such proceedings. And while proceedings before the county court are pending, this court cannot determine whether its ultimate action will result in a judgment beyond its jurisdiction. It follows that the writ must be denied. State ex rel. v. Heege, 39 Mo.App. 49. If, at any stage of the proceeding, it appeared that the proposed use was not a public one (way of necessity), the appropriation of property would be denied. Shoppert v. Martin, 137 Mo. 455; Railroad v. Railroad, 94 Mo. 535.

OPINION

In Banc

Prohibition.

KENNISH J.

This is an original proceeding by prohibition. Upon the filing of the petition a...