Union Electric Light & Power Co. v. Dawson

• Decision Date: 24 December 1934
• Citation: 78 S.W.2d 867,228 Mo.App. 1224
• Parties: UNION ELECTRIC LIGHT & POWER COMPANY, A CORPORATION, APPELLANT, v. MARGARET DAWSON, FYRN DAWSON, ETHEL DAWSON WALLEN, WHITE B. WALLEN, JOHN W. DAWSON, LETA DAWSON, IVA DAWSON STEVENS AND ROY STEVENS, RESPONDENTS
• Court: Missouri Court of Appeals

78 S.W.2d 867

228 Mo.App. 1224

UNION ELECTRIC LIGHT & POWER COMPANY, A CORPORATION, APPELLANT, v. MARGARET DAWSON, FYRN DAWSON, ETHEL DAWSON WALLEN, WHITE B. WALLEN, JOHN W. DAWSON, LETA DAWSON, IVA DAWSON STEVENS AND ROY STEVENS, RESPONDENTS

Court of Appeals of Missouri, Springfield

December 24, 1934

Appeal from the Circuit Court of Hickory County.--Hon. C. H Skinker, Judge.

AFFIRMED.

Judgment affirmed.

Sebree Sebree & Shook, Edgar Shook and R. E. Draper for appellant.

Henry F. Lay and F. M. Brady for respondents.

SMITH J. Allen, P. J., and Bailey, J., concur.

OPINION

SMITH, J.

There seems to be not much controversy over the facts in this case. As provided by Rule 22 of this court the parties have submitted this case to us under an agreed statement of the cause of action. We shall refer to and set out such parts of the agreed statement as we may deem necessary in the determination of this cause.

The parties concede that the only question at issue here is whether or not the trial court erred in entering a several judgment of $ 340 against each of the five defendants named in the judgment, instead of entering a joint judgment against the five defendants for $ 1700.

The plaintiff concedes here that the judgment entered was properly against the defendants, Margaret Dawson, Fyrn Dawson, Ethel Dawson Wallen, John W. Dawson and Iva Dawson Stevens. That no money judgment was sought or rendered against the other three defendants named in the caption. The other three defendants were spouses of three of the five persons first named above, and that the other three are in nowise interested in this controversy. In this opinion if we refer to the defendants it may be understood to refer to the five interested parties and not to the spouses.

The agreed statement of the cause of action has been printed in full in lieu of the abstract of the record.

This agreed statement showed the following:

"It is further stipulated and agreed that the following is a true statement of the history of this cause:

"PROCEEDINGS LEADING UP TO JURY TRIAL.

"This action for the condemnation of certain land in Benton County, Missouri, was begun in the circuit court of that county by the filing under order of said court of plaintiff's petition in condemnation in which the following allegations, among others, were made:

"'That defendant, Margaret Dawson, is the widow, and defendants, Fyrn Dawson, Ethel Dawson Wallen, John W. Dawson and Iva Dawson Stevens are the heirs at law of Eugene Dawson, deceased; and are, as such widow and heirs, the owners of an absolute fee-simple estate in the lands hereinafter described and sought to be condemned and appropriated in this proceedings and that they claim such lands as tenants in common; plaintiff further states that he is unable to ascertain and set forth the several and different interests claimed by said parties.'

"It was further alleged in substance that the defendants, White B. Wallen, Roy Stevens and Leta Dawson were, respectively, the spouses of the defendants, Ethel Dawson Wallen, Iva Dawson Stevens and John W. Dawson, and as such were entitled to dower inchoate in certain shares in said real estate.

"Summonses were duly issued and served on each of the defendants and the court entered an order and judgment adjudging plaintiff's petition sufficient, condemning the property and appropriating the same to plaintiff for the public uses set out in the petition and appointing commissioners in condemnation. The commissioners made oath and in due course filed their report assessing at $ 3,500 the damages of the defendants for the appropriation of said land but not allocating to the respective defendants their individual damages. The plaintiff on January 5, 1931, duly excepted to the report of the commissioners but paid said sum of $ 3,500 into court. No application was made for an order for the distribution of said sum but the court on January 31, 1931, made an order of distribution which was as follows (omitting the caption):

"'Now it appearing to the court that the plaintiff has paid to the clerk of this court the sum of $ 3,500 for the use and benefit of the defendants in the above-entitled cause, and it further appearing to the court that Margaret Dawson, Fyrn Dawson, minor, Ethel Dawson Wallen, John W. Dawson and Iva Dawson Stevens are the owners in fee of the land described in the petition of condemnation, it is therefore ordered by the court that the clerk pay the said sum of $ 3,500 to the following named defendants, Margaret Dawson, Margaret Dawson, guardian of Fyrn Dawson, a minor, Ethel Dawson Wallen, John W. Dawson and Iva Dawson Stevens.'

"The clerk of said court thereafter drew his check for $ 3,500 payable jointly to all five of the defendants named in said order of distribution, for which check said defendants executed their joint receipt. Said check was taken by said defendants to the Osage Valley Bank in Warsaw, Missouri, and there endorsed by them. It was agreed by the said defendants that Margaret Dawson should as between them take a child's share in lieu of dower and the proceeds were divided into five parts of $ 700 each, one of which parts was paid to each of said five defendants with the exception that $ 700, being the share of the defendant, Fyrn Dawson, who was then a minor, was deposited to the credit of Margaret Dawson as guardian of Fyrn Dawson. Prior to the time of trial hereinafter mentioned Fyrn Dawson attained her majority.

"At no time prior to such distribution of said $ 3,500 did any of the defendants file any pleading in this cause or in any other manner (except among themselves) assert any particular interest in the land in question. The defendant, Margaret Dawson, has never since her husband's death in 1920 filed her election to take a child's share in his estate as provided by law, and there is nothing of record in Benton County, Missouri, evidencing or giving notice of an agreement between herself and any of the heirs of her deceased husband that she should take a child's share therein.

"CHANGE OF VENUE AND TRIAL

"Application for change of venue having been filed by plaintiff, this cause was ordered transferred to the Circuit Court of Hickory County, and in due course there was tried in that court during the regular April Term, 1934, thereof, before a jury the question of the damages of the defendants for the condemnation and appropriation of said land. On the 8th day of May, 1934, the jury returned the following verdict:

"'We, the jury, find the issues for the defendants and assess their damages at the sum of $ 1,800. (Signed by nine jurors.)'

"MOTION FOR JUDGMENT

"Following the return of said verdict and on the 9th day of May, 1934, and during the same term, plaintiff filed its motion for judgment agreeable to the form of judgment attached to said motion, which motion with the form of judgment thereto attached (omitting captions and signatures), were as follows:"

We deem it unnecessary here to set out the copy of the proposed judgment attached to the motion but it contained provisions for a joint judgment for $ 1700.

The history of the cause as submitted to us continues as follows:

"Thereupon the parties submitted an agreed statement of fact, which was as follows, omitting the caption:

"The parties, for the purpose of enabling the court to pass on the motion for judgment filed in this cause, hereby agree to the following statement of facts:

"First The title to the land in controversy was vested in Margaret Dawson who was the owner of a dower interest therein, and elected to take a child's share of one-fifth, and Fyrn Dawson, Ethel Wallen, John W. Dawson and Iva Stevens were each the owner of an undivided one-fourth of such land subject to the dower interest aforesaid; and said interests were derived from Eugene Dawson, deceased, whose widow and only children they were; that Fyrn Dawson was at the time a minor under the age of twenty-one; that on the first day of January, 1931, the plaintiff paid to the clerk of the Circuit Court of Benton County, Missouri, the sum of $ 3,500, being the sum awarded to said defendants as damages for the appropriation of the real estate by the plaintiff; that thereafter on...