99 Mo. 199 | Mo. | 1889
The city of St. Louis instituted condemnation proceedings to open Park avenue from Jefferson avenue to Grand avenue. This was in February, 1880, and Dougherty et al. were defendants. The result of these proceedings was that damages were assessed in favor of the owner of lots 5, 6 and 7, in city block 1282, at the sum of $1,940.40.
• On the thirtieth day of March, 1881, the city passed an ordinance appropriating money to pay said damages, which ordinance went into effect, April 30, 1881. This suit was «brought by Mary E. Tanner, on November 19, 1881, for the damages assessed, she claiming to be owner of said lots. On the fourteenth of April, 1884, she filed her second amended petition, for the damages, and among other things alleged that, on the thirtieth of June, 1881, she demanded payment of the city of said damages, which the city refused to pay. On April 17, 1884, on the joint motion of Mary E. Tanner and Silas D. Hilton, the latter was substituted in this action in the lieu and stead of Mary E. Tanner. On the tenth day of July, 1881, Joseph S. Dobyns, attorney for Huntington Smith, made a demand on the city for the sum already mentioned. Smith was not a party to the condemnation proceedings, nor, so far as it appears, were Tanner or Hilton.
On June 27, 1884, the city, acting under the provisions of section 11 of article 6 of the city charter, S Revised Statutes, page 1607, to-wit, that, “If the
On January 5, 1886, Griswold entered his voluntary appearance, and a disclaimer.
On the same day, Huntington Smith entered his voluntary appearance, claimed to be the true owner of the lots, and of the sum assessed as damages.
The plaintiff introduced no evidence in support of his claim, and objected to any being introduced on the part of the city and on the part of Huntington Smith. But the court permitted evidence to be introduced showing that the city did pay the sum aforesaid into court in accordance with the charter; and it was also shown that Dobyns, as attorney of Smith, had made demands, on July 10, 1881, of the city for the amount of damages assessed. At the close of the testimony the plaintiff asked the following declarations of law, which the court refused to give:
‘ ‘ 1. The court declares the law to be that upon the pleadings and evidence in this case the plaintiff is entitled to recover.
The court thereupon entered the following decree: '“The court, having seen and fully considered the motion of plaintiff to strike from the files of this court the entry of appearance and reply of said Huntington Smith to the second amended answer of the city of St. Louis in this cause, doth now overrule said motion. And the court being now also fully advised as to the matters in issue in this cause presented by the second amended answer of cross-petition of defendant, the city of St. Louis, filed in this cause, doth find in ■ favor of said defendant, the said city of St. Louis, and doth find that -heretofore, under an ordinance of said city, entitled ‘An ordinance to establish and open Park avenue from Jefferson to Grand avenue,’ approved March 11, 1880, proceedings were had in this court at the suit of said city, whereby, on February 21, 1881, a final decree was entered condemning for public use all that part of lots numbered 5, 6 and 7, in block 1 of Compton Hill addition to the city of St. Louis, and in city block 1282 of said city, fronting seventy-five feet on the south line of Park avenue, as laid out in said addition, by a depth south on the west line of lot seven of nipe feet, four and five-eighths inches, and on the east line of lot 5 of nine and six-twelfths feet, to the south line of said Park avenue as established by city ordinance number 11,314, and all that part of said lots numbered 5, 6, 7, embraced within the lines of said Park avenue; that in and by said proceedings of condemnation the net sum of $1,940.40 was assessed as the damages which the owners of said realty so condemned would sustain by the taking thereof for public use as aforesaid; that afterwards;
1. Under the provisions of section 11, article 6, of the city charter, 2 Revised Statutes, 1879, p. 1607, the city very properly paid the money into court, there being a controversy as to whom the amount belonged; and the assembly did appropriate the money and provide by ordinance 11,679, for the payment of the same, as required by section 10 of the charter. And, apart from the ordinance, the city complied with a similar provision of the constitution, which, if an ordinance were lacking, would have supplied any such lack. Const., sec. 21, art. 2; K. C., C. & S. Railway Co. v. Slory, 96 Mo. 611. Besides under its bill' of inter-pleader, the city was entitled, in order to support that bill, to bring the money into court. 2 Story’s Eq. Jur., sec. 809. On either of the above-mentioned grounds, then, the payment of the money into court was an authorized act.
II. The city, being in doubt as to whom the amount paid into court belonged, pursued the proper course in filing an answer containing the elements of a bill in the nature of a bill of interpleader. 2 Story, Eq. Jur. [13 Ed.] sec. 824. See also lb., secs. 807, 808, 810, 811 et seq. And it has been ruled that a court, before which the proceedings are pending, has the “power,to cause rival claimants, to the damages awarded, to interplead;” and that it is the duty of the condemning party ! ‘ to bring in all parties having an interest in the estate, in order that the condemnation money may be properly
III. Now if the protection of the city demanded the filing of an answer in the nature of a bill of inter-pleader, and if it was the duty of the court, upon noticing the defect, to cause new parties to be brought in, of its own motion, it is difficult to see what error could arise where one of such parties who should have been brought in, and would have been brought in, anticipated the summons of the court, came in, submitted himself to the jurisdiction of the court; filed his pleading and asserted his claims. These remarks show the correctness of the action of the trial court in refusing to allow the respective motions of the plaintiffs to prevail, to strike out that portion of the city’s answer in the nature of a bill of interpleader.
IY. In the same light, is to be regarded the action of the court in regard to the necessity of the answer of the city being verified by affidavit. Such was the course pursued in the old chancery practice (2 Story’s Eq. Jur., sec. 809); but under our practice act, pleadings require no such verification. An intimation to the contrary was made in Merchants' Nat'l Bank v. Richards, 74 Mo. 77, but we do not approve it.
Y. As Hilton, the substituted plaintiff, seems to have adopted the petition of Mary E. Tanner, and
Furthermore, it does not appear what is the nature of the property in question, whether vacant or occupied by houses. But it is nowhere shown or averred, and so the decree recites, that the city has ever taken possession of the premises. If so, then it would seem that interest ought not to run while the party claiming it remains undisturbed in the possession of the premises. Moreover, some consideration is to be given to the fact that Hilton, though substituted as plaintiff, seems to have remained inactive in the prosecution of the suit, which from all appearances could have been terminated long ago.
In the light of all these facts, we affirm the judgment.