272 S.W. 66 | Mo. | 1925
Lead Opinion
Certiorari seeking to quash the record of the Kansas City Court of Appeals upon appeal, in the case of State ex rel. Minnie H. Clinkscales, appellant, *129
v. Lewis A. Scott et al., respondents (
The suit of Minnie Clinkscales was one to recover the principal sum of $1500 paid to Lewis Scott, as circuit clerk, under the provisions of Section 4405, Revised Statutes 1919, by the supervisors of a drainage district in Carroll County. That was the sum allowed as the value of the property taken, and damages resultant thereto, in certain lands situated in said drainage district as fixed by the judgment of the circuit court having jurisdiction in said drainage district proceedings. The trial court rendered judgment for the plaintiff in the penal sum of the bond, $5000, and adjudged that she have execution in her favor "for herself and as trustee for remainderman under the will of Robert H. Clinkscales, deceased, in the sum of fifteen hundred and thirty dollars" and for costs. The trial court overruled the plaintiff's motion in arrest, and to modify that judgment, and the plaintiff appealed. The Court of Appeals reversed and remanded the cause with direction that "a judgment for $5,000 be entered for relator [plaintiff] and that she have execution for $1500 with interest from the date of demand."
I. Before going into the main question we take up a contention made for the respondents in opposition to the issuance of the writ, and made again upon the hearing. It is urged that the application for the writ of certiorari was delayedCertiorari: too long, andDelay. *130 that the writ should be quashed for that reason. This contention is bottomed upon the fact that though the application was filed within thirty days after the overruling of relator's motion for a rehearing, it was not filed until after the mandate of the Court of Appeals had been transmitted to the clerk of the circuit court, and that relators had filed no request that the mandate be withheld, pending an application for the writ. The relators' motion for a rehearing was overruled on May 5, 1924, and the application for the writ was filed on June 3, 1924. The application itself did not allege any request made to withhold the mandate, and the respondents, in support of their reasons in opposition to the issuance of the writ, filed the certificate of the Clerk of the Court of Appeals showing that no request had been made to withhold the mandate, and that it had been transmitted on May 16, 1924.
Counsel in support of their contention under this head cite State ex rel. Berkshire v. Ellison,
II. The conclusions reached by the Court of Appeals were founded upon the state of the pleadings before it. In that, it took into consideration the allegations of the answer, as well as of the petition. The petition, after setting forth the official character of Lewis Scott and the execution and terms of the bond, charged a breach thereof — alleging that in January, 1923, there had been adjudged to Minnie Clinkscales, in a judgment duly rendered by the Circuit Court of Carroll County in a certain drainage district proceeding before that court, the sum of fifteen hundred dollars, which sum had afterward in April, 1923, been paid to Lewis Scott for the use of Minnie Clinkscales and to be paid to her by said Scott; that demand of payment had been made, and payment thereof refused.
The answer did not contain a general denial. The answer admitted the execution of the bond, and that Lewis Scott, as circuit clerk, received said sum of $1500, "in payment for the right of way across and damage to the lands," thereinafter described, and stated that said sum was awarded by the judgment of the circuit court amending and confirming the commissioner's report in the proceedings had under the provisions of Article I, Chapter 28, Revised Statutes 1919, to assess benefits and damages in carrying out the plans of said drainage district, and in respect of the certain described lands, and set out so much of the judgment as was applicable to the particular lands described, showing Minnie Clinkscales as owner, and the total sum of $1500 awarded as the value of property taken for right of way, and damages to the remainder. The answer then continued:
"The defendants further state that after the receipt of said sum of fifteen hundred dollars from the said drainage *132 district the defendant Lewis A. Scott, as such circuit clerk, was notified that the relator, Minnie H. Clinkscales, was not the owner in fee simple of said real estate, but only the owner of an estate for and during the life of Robert Clinkscales and for and during her life or widowhood should she survive the said Robert Clinkscales; that the attorney for said drainage district notified the said defendant, Lewis A. Scott, that the said award of fifteen hundred dollars was made by agreement and was allowed as full compensation for the whole title to the right of way and the damage to all said land by reason of the construction of said improvements, and that said sum of money should be paid to all of the owners of said real estate, as provided by Article I of Chapter 28, Revised Statutes 1919, under which said district was organized.
"Defendants further state that all of the real estate above described was owned by Robert H. Clinkscales at the date of his death in January, 1890; that by his will said Robert H. Clinkscales devised said real estate to Robert Clinkscales for and during his natural life and after his death to the relator, Minnie H. Clinkscales, for and during her natural life or widowhood, and upon her death or re-marriage the same to go to the children of Robert Clinkscales; that at the date of the execution of said will, the said Robert Clinkscales had only one child, to-wit, Romeo Hughes Clinkscales, who is now living; that thereafter there was born to the said Robert Clinkscales and the relator, Minnie H. Clinkscales, a child that lived only a short time; that thereafter the said Robert Clinkscales conveyed all of his right, title and interest in and to the land above described to the relator, Minnie H. Clinkscales.
"The defendants further state that because of the premises aforesaid, the defendant, Lewis A. Scott, was uncertain and is still uncertain as to who is entitled to the said fifteen hundred dollars paid into his hands and has been at all times ready and willing to pay the sum to those legally entitled thereto, but could not determine *133 to whom said funds belong; that the defendant, Lewis A. Scott, here tenders and offers to pay into court the said sum of fifteen hundred dollars, to be distributed to whomsoever the court may decide to be in equity and good conscience entitled to the same." The defendants then prayed the court to order that defendant Lewis Scott pay said sum into court, that Minnie Clinkscales be restrained from further prosecuting the suit, and that she, and the alleged remainderman and the drainage district be compelled to interplead for said sum, and for general relief.
Then followed the plaintiff's motion for judgment on the pleadings.
The Court of Appeals set forth the fact, pleaded in the answer, that Minnie Clinkscales had excepted to the report of the commissioners, that her exceptions had been heard, and that the judgment had amended the report in respect of assessments of benefits against said lands, but not in awarding sums for rights-of-way and for damages, and that the judgment was one finally allowing to her said aggregate sum as owner and exceptor in said proceeding.
The Court of Appeals held that the sole question for review was the meaning and effect of the decree in the drainage district proceeding, and stated the contention of appellant there. It was that the decree in the drainage proceeding awarded said sum personally to Minnie Clinkscales. The court construed the judgment as one which clearly and unmistakably decreed that she was the owner of the lands taken and damaged, and was entitled to the funds in question individually and not as trustee for the remainderman; that the answer was a collateral attack upon the judgment; and that it was not within the province of the circuit clerk to question the decree.
The respondents urge that the answer did not deny the allegations of the petition; that it set up no defense; and that the answer did not state a case for interpleader. These contentions may be laid aside at this time, because the result reached by the Court of Appeals did not rest *134 upon those grounds, but upon the ground that the judgment as shown by the pleadings as a whole was one awarding the damages involved to Minnie Clinkscales; that she was the only party plaintiff in the proceeding upon the exceptions to the report; that it does not appear there were any steps taken to have the remainderman included as a party thereto; that thereby it was decreed that she was the owner of the lands and entitled to the fund individually. If the decree must be so regarded, then the answer was an attempted collateral attack to which the judgment is not subject.
Is the decree an adjudication that Minnie Clinkscales was the owner of the land, and personally entitled to the fund, to be paid in, and actually paid in? The Drainage Act is a code unto itself in respect to the manner of organization of drainage districts, the condemnation of lands by such districts, and the review of proceedings had under the act. [Mississippi Fox River Drainage District v. Ackley, 270 Mo. l.c. 173; State ex inf. v. Norborne Land Drainage Dist. Co., 290 Mo. l.c. 131; In re Big Lake Drainage District v. Rolwing,
Some of the statutory provisions should be noticed. Section 4415, Revised Statutes 1919, is as follows: "The word `owner' as used in this article shall mean the owner of the freehold estate, as appears by the deed record, and it shall not include reversioners, remaindermen, trustees or mortgagees, who shall not be counted and need not be notified by publication, or served with process, but shall be represented by the present owners of the freehold estate in any proceeding under this article." The validity of this section is not made an issue, nor is there any question as to the proceedings had being otherwise than duly had, under the provisions of the act. The answer alleged that they were so had, and the motion for judgment was an admission that they were.
Under Section 4378 the articles of association are required to state "the names of the owners of lands in said district, together with a description of the lands, *135
owned by each." By Section 4389, the circuit clerk is required to give the commissioners appointed a list of the lands, and the names of the owners as they were contained in the articles of association at the time of the decree incorporating the district. Under Section 4390, the report of the commissioners must show the name of the owner of the property affected by their action. The assessments are to be made as found to accrue to each governmental lot, forty-acre tract or other subdivision of land according to ownership. By Section 4391, all persons interested are to be notified, generally, of the filing of the report, by publication, describing all the lands, but not naming the owners. By Section 4392, any owner of land may file his exceptions to the report, which exceptions are to be heard and determined by the court. Under Section 4405, the district, in order to avail itself of the aforesaid proceedings for taking lands, must pay the amount awarded, to the owner, or to the circuit clerk for the use of the owner of any land, before appropriating such land, and do so within five years, otherwise all such proceedings to take land shall abate. By the provisions of Section 4405, the title, use and enjoyment of the land so acquired by the district passes from the owner and vests in the district, upon payment of the price awarded to the owner, or to the circuit clerk for the use of the owner. The title does not pass by or upon the judgment of condemnation, but upon payment of the price and appropriation thereunder. [Land and Improvement Company v. Kansas City,
The Court of Appeals seems to emphasize somewhat the fact that the life tenant alone filed exceptions and alone was a party to the hearing and determination of the exceptions. But the owner of the present freehold estate, under the provisions of Section 4415, represented the remainderman, and he none the less was before the court so far as his interest was affected by that proceeding, the primary purposes of which was, on the one hand, to have judgment authorizing the taking of the land with all interests of all persons therein, and on the other, the fixing of a sum to be awarded in satisfaction of the interest of all persons in the land. Beyond doubt in the proceeding in question, whose regularity is not questioned, and is conceded under the pleading, and in the opinion by the Court of Appeals, the interests of both life tenant and remainderman in the land were laid hold of; and it is equally clear that when the gross sum awarded for all interests in the several tracts was paid in, it stood in lieu of the land, and the life tenant and the remainderman had the same interest in the fund they formerly had in the land. [Kansas City, S. M. Ry. Co. v. Weaver,
"Where land is sold subsequent to the award, but before the payment is made or security given by the condemnor, and the conveyance is silent as to the right to damages, such right passes to the purchaser." [20 C.J. 862; Hamilton v. Big Medicine Drainage Distr. No. 1,
We are of the opinion that the holding of the Court of Appeals that the judgment of the Circuit Court of Carroll County was a personal and individual judgment in favor of Minnie Clinkscales is in conflict with the ruling of this court in Troeger v. Roberts,
In its holding that the judgment of the Carroll Circuit Court was an adjudication that Minnie Clinkscales was the owner of the lands, that is, the owner in exclusion *139
of any interest in remainder or otherwise, and that the answer is a forbidden collateral attack upon that judgment, the opinion is not reconcilable with the rulings of this court in Charles v. White,
Charles v. White,
The exceptions filed by the life tenant, who, in doing so, by force of statute, and by virtue of her freehold interest represented the remainderman, was not a pleading raising any issue as to title, but was solely an objection to the amount awarded in the report. In that proceeding the statute did not contemplate that the question whether Minnie Clinkscales had more than a life estate should be an issue, and in fact there was no such issue, and necessarily the court did not decide such issue. Beyond that, the statute, by providing that the sum awarded could be paid to the circuit clerk, at any time, thereafter, in a period not exceeding five years, for the use of the owners, inevitably had in view the probability that the owners might not be the person or persons named in the court's decree. The payment of the award does not operate to divest title as of the date of the decree. [Land and Improvement Co. v. Kansas City, 293 Mo. l.c. 680.]
In this case we cannot hold that the matter here in dispute was put in issue and tried in the drainage proceeding. Not only does the record fail to show affirmatively that such an issue was made, but the statutory nature of the proceeding excludes the idea that it was. *141 On these grounds we hold that the ruling of the Court of Appeals is in conflict with the decisions of this court in Troeger v. Roberts, Charles v. White, and also in Blair v. Blair, supra.
III. The respondents, as has been heretofore mentioned, urges that the petition stated a cause of action in Minnie Clinkscales, that the answer did not contain a denial, and stated no case for interpleader. The circuit clerk, by the drainage statute, and by virtue of his office was made a trustee of the fund forClerk as the use of the owners. He could not do otherwise, andTrustee: did not do otherwise than admit the receipt of the fund in his official and trust capacity, and state the nature of the proceeding out of which the fund arose, and the ground of his uncertainty as to his duty in the premises. This whole proceeding and the claims put forth for Minnie Clinkscales show that she was and is claiming the fund personally and absolutely, yet, in the state of the pleadings, it is admitted that she represented the remainderman in respect of his interest. In response to what was set up in the answer, she asked for judgment for herself, personally. The drainage district having paid the money to the circuit clerk was acquitted of further responsibility. The clerk as trustee of the fund, holding it for the use of the owners of the land had the right to invoke and by his answer did properly invoke the aid of the court to determine and declare the ownership, and use of the fund to be paid out by him.
It is urged here that the judgment of the Court of Appeals, upon the whole and in result, is right: that Minnie Clinkscales as trustee was authorized by statute (Sec. 1156, R.S. 1919) to sue in her own name. But, the position taken by her, and the conclusion of the Court of Appeals, is a repudiation of any relation of trust on her part.
It is further suggested that under Section 13421, Revised Statutes 1919, the beneficiary may by his petition have the trustee give bond if he wishes to do so. Such *142 a petition would seem belated in the face of the judgment in the drainage district proceeding as it was construed by the Court of Appeals, and in face of the judgment which the Court of Appeals directed to be entered, in the suit for the fund. The issue as presented by the pleadings involved the passing of a fund from a trustee to another person who also bore a trust relation to that fund. The judgment of the circuit court, in passing the fund, placed upon it the proper indicia of its ownership and use, and was right.
It follows that the record of the Court of Appeals should be quashed. Seddon, C., concurs.
Addendum
The foregoing opinion of LINDSAY, C., is adopted as the opinion of the court. All of the judges concur, except Atwood, J., not sitting; Graves, J., in the result.