State ex rel. State of Highway Commission v. Spell

SIMON, Presiding Judge. The Missouri Highway and Transportation Commission (formerly the State Highway Commission of Missouri and hereinafter “Commission”) appeals from a partial dismissal of a condemnation petition pursuant to a motion to amend the condemnation order and the report filed by the court appointed commissioners. On appeal, Commission contends the trial court erred in: (1) denying Commission’s motion to amend the order of condemnation and the commissioners’ report in that the denial violated Supreme Court Rules 74.30 and 74.31; (2) granting Spell’s motion to vacate judgment in that Spell waived the right to challenge the condemnation proceedings by accepting the condemnation award; (3) granting Spell’s motion to vacate judgment in that doing so violated Supreme Court Rule 74.30; and (4) ordering Commission to refile a condemnation petition in that the trial court exceeded its jurisdiction; the exclusive authority to file such a petition being vested in Commission. We affirm and modify. The Commission filed a condemnation petition in May, 1976 seeking to acquire property rights necessary for the construction of a highway in St. Louis County, Missouri. The petition by reference incorporated details as to the proposed highway and the property rights desired.1 The petition sought condemnation of ten parcels, one owned by Spell (Parcel 398) which is the subject matter of this appeal. A hearing was held on the petition and on July 6, 1976, the trial judge ordered the property condemned and appointed three commissioners to assess damages sustained by the owners of the parcels. Neither the order of condemnation nor the order appointing the commissioners described the parcels of land except by referring to the petition. The commissioners filed their report on February 17, 1977 which included a condemnation award of $45,000 to Spell for parcel 398. The award was paid into the court’s registry on March 9, 1977 and an order to pay Spell the funds was entered on June 8,1977. On February 24, 1977, Commission filed an exception to the award on parcel 398 claiming it to be excessive and seeking a new appraisal by a [652] jury. Spell, on the same day, filed an exception to the commission’s report also seeking a jury appraisal. On July 31, 1981, Spell filed a motion to vacate judgment in condemnation as to parcel 398 for the reason that the legal description of the parcel as contained in Commission’s condemnation petition and the commissioners’ report “fails to properly describe the land owned by” Spell, in violation of § 523.010 RSMo 1978. The motion was denied on November 12, 1981. On February 22, 1982, Commission filed a motion to amend the condemnation order and commissioners’ report. The motion asserted that the petition and report “contained a clerical error which arose when the true description was transferred from the plans [incorporated by reference into the petition] to a word description [used in the petition and report].” The motion contended the plans [which were correct] were incorporated by reference into the petition, admitted into evidence at the hearing, relied om by all parties and used as the basis for the highway constructed. The court denied the motion and dismissed the condemnation petition as to parcel 398 and ordered Commission “to file a petition which properly describes the property taken.” This appeal followed. Commission, in its first point, contends the trial court erred in denying the motion to amend the property descriptions in the condemnation order and commissioners’ report in that the denial violates Rules 74.30 and 74.31. We disagree. Rule 74.30 provides, in pertinent part, that a judgment shall not “be reversed, impaired, or in any way affected by reason of the following imperfection, omissions, defects, matters or things, or any of them, namely: _(10) for any mistake_in any description of any property .... when the correct .... description shall have been once rightly alleged in any of the pleadings or proceedings;”. Rule 74.31 states: [t]he commissions, imperfections, defects and variances enumerated in Rule 74.30, and all rights of a like nature not being against the right and justice of the matter of the suit, and not altering the issues between the parties on the trial, shall be supplied and amended by the court where the judgment shall be given, or by the court into which such judgment shall be removed by appeal.” Commission contends the correct description of the property is contained in the highway construction plans which are incorporated in the petition by reference. Therefore, the petition contains the correct description. We disagree. This is not a situation where the petition contains a general description which is to be augmented by another document. Here, the description in the petition is meticulously specific. It was not necessary for Spell to venture beyond the petition and examine the plans attached. See, Sassman v. State Highway Commission, 45 S.W.2d 1093, 1095[1] (Mo.App.1932). Further, the property description is not correctly alleged in the petition so that Spell can, without too much difficulty, determine exactly what land is being taken; the property’s description is an essential element in condemnation and a mistaken one, under these circumstances, cannot be cured under Rule 74.30 and 74.31; the motion to amend is untimely; the commissioners’ report was already filed and the proceedings concluded. State ex rel. County of Mississippi v. Stallings, 434 S.W.2d 588 (Mo.1968). Commission, in its second and third points, contends, respectively, the trial court erred in granting Spell’s motion to vacate judgment in that Spell waived his right to so move by accepting the award and the action by the court violated Rule 74.30. Commission’s points are meritless since Spell’s motion to vacate judgment was denied. Commission, in its fourth point, contends the trial court erroneously ordered it to file a new petition with a proper description of the parcel in that the order violated Article II, Section I of the Missouri Consti [653] tution concerning the separation of powers of the branches of Missouri’s government. The order in issue reads: Plaintiff appears by its counsel, John W. Maupin, and Defendant appears by its counsel, Glennon R. Vatterott, and Plaintiff presents its motion to amend the order of condemnation and report of commissioners pursuant to Rule 74.31, alleging a clerical error in the property description contained in same. The Court, being fully advised in the premises, denies Plaintiffs Motion, orders the petition dismissed as to those Defendants and paragraphs 12 through 12.30 [parcel No. 398], inclusive, and orders plaintiff to file a petition which properly describes the property taken, (emphasis added). Commission’s point is correct. State ex rel. County of Mississippi v. Stallings, 434 S.W.2d 588, 592 (Mo.1968). Accordingly, the portion of the trial court’s order mandating a petition to be filed is erroneous. Spell has been paid $45,000. If the payment was mistakenly made, it is not the function of the court to suggest a remedy. The trial court did not find Spell at fault. Able counsel should be able to achieve an equitable result, id. at 592. The order of the trial court is affirmed and modified as herein provided. STEPHAN, J., concurs. KAROHL, J., dissents. Footnotes [1] The highway construction plans are not part of the record on appeal.