252 Mo. 209 | Mo. | 1913
This proceeding was instituted in the circuit court of the city of St. Louis to open Louisiana avenue from Merame street to Neosho street. There were thirty original defendants and about three hundred other persons against whom benefits were assessed.
The regularity of the proceedings prior to the filing of the report of the commissioners is not ques
June 11, 1909, the court gave plaintiff leave to. withdraw the report of the commissioners for correction and on the same day the corrected report was filed. What the correction was the record does not show, though respondent’s additional abstract contains the statement that it was purely clerical.
New exceptions were filed by the same defendants, like those filed May 14, except that the correction made is alleged to have been sufficient to make the report show an award for damages both for the part taken and for the injury to the residue. Respondent brings here that part of the report relating to the award of damages to the parcel mentioned and it clearly shows a sufficient assessment by the commissioners. This is from a report shown f to have been sworn to on April 28, 1909. October 1, 1909, a hearing was had on the exceptions. Evidence was offered, pro and eon, on the question as to the sufficiency of the damages awarded the defendants named, both for the parcel condemned and for the injury done the severed parts of the original tract. The city also offered evidence. tending to show that in making their award the commissioners had taken into consideration all proper elements of damages to exceptors’ property. The court, on October 11, overruled the exceptions. On November 3,1909, evidence that the assembly approved
“Now on this day this cause coming on to be heard upon the report of the commissioners, filed May 7, 1909, comes plaintiff by its attorneys,” etc. “It is therefore considered, ordered and adjudged, that said report he and the same is in all things approved, confirmed,” etc. No objection to the form of the judgment is suggested. On November 5, appellant was, on her motion, made a party defendant on the' ground that she had purchased from the Commonwealth Trust Company, the property which, as above stated, it had previously held as trustee for Pelagie Taylor. November 5, 1909, she filed her motion for new trial and this being overruled she appealed.
Appellant contends “that the judgment of the circuit court is void” because (a) it purports to’confirm the commissioners’ report filed May 7, 1909, and that report had been withdrawn and superseded by one filed June 11, 1909; (b) no time after June 11, 1909, was given the city in which to report the .result to the municipal assembly for its information and approval, and (c) there was (it is asserted) no evidence of the assembly’s approval of the result of the commissioners’ report, and (d) the court attempted to render a special judgment in favor of the city and against defendants for benefits assessed, and to create a special lien and award special execution against property benefited.
I. The allegations in the exceptions to the effect that the commissioners had not allowed the Trust
There being nothing to show what correction was made and the trial court having acted upon the report and treated it as unaffected by the correction, the usual presumption supporting rulings and judgments of trial courts leaves, on this branch of the case, but the single inquiry whether the circuit court in a case of this kind can permit any sort of correction to be made in the report of the cominissioners without eliminating that report and, by the correction permitted, bringing a new one into existence.
In Long v. Talley, 91 Mo. 1. c. 309, it was held that in proceedings in the county court to establish a public road that court had the power to require the commissioners to amend their report in particulars in which it was not sufficiently specific. It was said such report occupied the position of a verdict and was amendable on the principle warranting amendments of verdicts.
In Woolsey v. Tompkins, 23 Wend. 1. c. 327, the court had under consideration the question of the right of commissioners in proceedings to lay out a road to amend clerical errors in their report and in an opinion by Chief Justice NelsoN the court said:
“But I perceive no objection to the amendment made. The reversal of the order of the commissioners and determination to lay out "the road were quasi-judicial acts, and could not be reviewed or altered by the judges; but making up the record of the proceedings was immaterial. It would be strange i'f a slip’ in doing so must be fatal. In the administration of jus*217 tice in courts of record, it is a matter of course to amend clerical errors; indeed, there is scarcely a paper or record in the proceedings there hut at this day is amendable. Absolute accuracy is beyond human care and power; and the most intolerable confusion and mischief would ensue a denial of this right there, or in all like proceedings.-”
In Pott’s Appeal, 15 Pa. St. 1. c. 416, a proceeding to lay out a public road, the Supreme Court of Pennsylvania said:
• “The exceptions filed to the action of the court below are entirely destitute of merits, and we deem it necessary thus to notice them particularly, only to express our approbation of the course pursued in sending their report back to the viewers for correction in a point not touching the propriety of laying out the road in question. It was done in pursuance of a recommendation I ventured to suggest in the case of the Towamencin Eoad, 10 Barr, 195. That recommendation was founded in experience of the vexatious trouble, expense, and inconvenience to which parties were frequently put by the practice of setting aside reports of reviewers, upon mere technical grounds, not in any degree touching the merits of the controversy. It frequently happened that, after years- of struggle, accompanied by the bitterness of feeling too apt to accompany these discussions, a report of re-reviewers was set aside for some trifling omission of form, such as occurred in this instance — neglect to note improvements on the draft — and the parties left just where they had begun; and thus the strife was renewed, possibly again to end in the same way. Every one, with the least practical knowledge of this subject, must have felt this to be an evil, of which the case before us is a pregnant example.”
Mr. Lewis in his treatise on Eminent Domain, vol. 2, sec. 641, recognizes the same doctrine: All these authorities and others (Cambria Street, 75 Pa.
In this last cited case (1. c. 111) the applicable statute provided that the commissioners must take into consideration “the loss or damage” and also “the benefit or advantage” resulting to the land owners and “state particularly the nature and amount of each.” The report in this case failed to “set out the particulars of damage as required by the act,” and a motion was filed to set aside the report on that ground. Upon the question thus raised, the court said: “But the omission was an informality which may be amended by requiring the commissioners to supply, in the return which they have made, the par-, ticulars of the damage which they assessed. The motion was, not to amend, but to set aside the return and vacate the proceedings of the commissioners, in order that the subject should be recommitted to them, or to others to be appointed in their stead. The return cannot be set aside unless the commissioners proceeded illegally or wrongfully in making the valuation. If their proceedings be regular and conformable to the ■direction of the act, but the return be incomplete, the proper course is to order the return to be amended, not set aside.”
' It is provided in section 7 of article 6 of the charter of the city of St. Louis that: “The report of said commissioners ■ may be reviewed by the circuit court on written esceptions . . . and the court shall make such order therein as right and justice may require and may order a new appraisement upon good cause shown . . .”
That the court might, under this provision, exercise its inherent power to cause clerical errors to be corrected is hardly disputable; and that the court’s
II. So far as concerns the failure of the record to show, on or after June 11, a second reference of the report to the municipal assembly, it will suffice to
III. With respect to the assignment that the court rendered judgment making the benefits assessed
The questions raised are purely technical. Appellant took title subject to these proceedings (So. Ill. & Mo. Bridge Co. v. Stone, 174 Mo. 1. c. 35) and after the report was corrected her predecessors in title had been accorded a fair hearing on the question of the sufficiency of the damages awarded. On the evidence the court found the amount allowed, which amount was not affected in the least by the correction, was sufficient to compensate for all damage inflicted. The sufficiency of the evidence to support this finding is
If this judgment was reversed and the cause remanded on the grounds urged, the sole effect would be to require the trial court to base its judgment on the report as corrected, there being no complaint of any irregularity prior to the correction.
Since the damages awarded and benefits assessed were wholly unaffected by the correction, and since a trial of the justice of these has been had, and there was not in any event any error in failing to grant further time for a report to the assembly, the sole practical question really is whether this court, in the circumstances of this ease, will reverse this cause in order to compel the trial court to change the reference in the judgment to the date of the commissioners’ report from “May 7th” to “June 11th.” The answer to that question is that the judgment is affirmed.
The foregoing opinion of Blaze, €., is adopted as the opinion of the court.
