434 S.W.2d 552 | Mo. | 1968
The state at the relation of the state highway commission filed condemnation proceedings naming the owners of the fee, and the lessee, and Warren E. Dean and wife, who claim to be sublessees of the property, as defendants. The commissioners awarded $78,000 damages without apportionment. The state, the owners and the Deans filed exceptions. These exceptions are still pending and undisposed of. The owners filed a motion for distribution asking for the entire $78,000, denying that any of the other defendants had any right, title or interest in the award. The Deans filed a reply, asserting their interests as sublessees, alleging that an award is not subject to apportionment while exceptions are pending and no final judgment has been entered, and praying that the motion for distribution be denied. Later the Deans filed a request for a jury trial of certain issues developed by the motion and reply, including the question of apportionment. The trial court denied the request for a jury trial, heard the motion for distribution, found that the Deans had no interest in the property entitling them to any part of the commissioners’ award, sustained the motion for distribution, and ordered the entire $78,000 distributed to the owners. The motion of the Deans to set aside the judgment not having been ruled on within 90 days, they appealed to this Court.
Prior to the enactment of Laws of Missouri 1965, p. 660 [S. B. 274] an appeal from an order directing that one of several defendants in a condemnation case take all of the commissioners’ award,, made while exceptions to the award were still pending and undisposed of, would be dismissed as premature, on the ground that there was no final judgment within the meaning of the law. State ex rel. State Highway Comm. v. Mahon, Mo.App., 350 S.W.2d 111. That enactment introduced a new section [523.053], paragraph 2 of which provides in part as follows: “Any party aggrieved of the determination of interests made by the court [on a motion for distribution] shall have the right of appeal therefrom, and the same shall be considered as a final judgment for such purposes.”
Appellants claim that the Supreme Court has jurisdiction because the amount in dispute exceeds $7,500 [sic] (properly $15,000). They take the position that the amount of the award ($78,000) is the amount in dispute. The amount of the award is not the amount in dispute. Appellants are not claiming the entire amount of the award. They concede that the heirs of W. E. Reed, Deceased, are the owners of the fee simple title to the property; that the fee owners are entitled to their part on a
Appellants further claim that the Supreme Court has jurisdiction “for the reason that there is an issue involving construction of the right to a jury trial as provided by the laws of Missouri, the Constitution of Missouri, and the United States Constitution.” As indicated, appellants filed a written request for a jury trial of the issues raised on the motion for distribution, and the court denied the request. Appellants, who were bound to raise the constitutional question at the first opportunity in order to preserve it for appellate review, did not do so when the court denied their request for a jury. In their motion for new trial they complained that the court erred in denying their request for a jury trial, but did not place their claim on constitutional grounds or cite any provision of the constitution. The failure of litigant to present a constitutional question to the trial court in the motion for new trial disentitles him to an appellate review of the question, as ruled in Rowden v. Amick, Mo.Sup., 434 S.W.2d 550, handed down concurrently herewith.
No other ground for the exercise of our jurisdiction appearing, the cause is transferred to the Springfield Court of Appeals.
PER CURIAM:
The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.
All of the Judges concur.