83 Mo. App. 557 | Mo. Ct. App. | 1900
In 1895, tbe defendant instituted proceedings against the plaintiff to condemn a strip of land for public use. Tbe matter reached tbe circuit court on appeal, where, after several mistrials, tbe proceeding was dismissed by the court. No appeal was taken from the judgment of dismissal. Tbe present action is to recover the expenses incurred by plaintiff in defending tbe action. It was agreed at tbe trial that if plaintiff was entitled to recover anything her damages should be assessed at tbe sum of one hundred and twenty-five dollars. 'The cause was submitted to the' court without a jury. The judgment was for the plaintiff for tbe stipulated amount, and tbe defendant has appealed.
It is conceded by counsel for appellant that if tbe dismissal of tbe condemnation proceedings bad been voluntary tbe right of plaintiff t to recover tbe amount legitimately expended by her in defending the action would be unquestioned. But a recovery is contested on the ground that tbe dismissal was tbe result of tbe judgment of tbe court. "We have been unable to appreciate tbe distinction which counsel urge. It is true that in all of tbe reported cases in this state tbe proceedings of condemnation were voluntarily abandoned, but in these cases tbe liability of the corporations were not predicated
The judgment of the circuit court will be affirmed.
