City of St. Louis v. Busch

BLAIE, C. This proceeding was instituted in the circuit court of the city of St. Louis to open Louisiana avenue from Merame street to Neosho street. There were thirty original defendants and about three hundred other persons against whom benefits were assessed. The regularity of the proceedings prior to the filing of the report of the commissioners is not quesReport""/ l0"' OrderedS'°nerS Corrected. tioned. That report was filed May 7, 1909, and by it damages were awarded to the Commonwealth Trust Co., trustee, an<^ Pelagie Taylor, impleaded as the owners of the several interests in a parcel of land in IT. S. Survey 74, Caronde-let Common Fields, St. Louis, through which parcel — 214 — the proposed extension of Louisiana avenne passed. On the application of the city counselor plaintiff was. granted until May 20, 1909, to report the result of the awards to the municipal assembly for its information and approval. On May 14 exceptions were filed, in one of which it was alleged that the commissioners, had allowed the above named defendants no damages for injury to the severed parts of the parcel owned by them as stated, i. e., that the damages awarded were solely for that part of the parcel taken for use as part, of the proposed new street. June 11, 1909, the court gave plaintiff leave to. withdraw the report of the commissioners for correction and on the same day the corrected report was filed. What the correction was the record does not show, though respondent’s additional abstract contains the statement that it was purely clerical. New exceptions were filed by the same defendants, like those filed May 14, except that the correction made is alleged to have been sufficient to make the report show an award for damages both for the part taken and for the injury to the residue. Respondent brings here that part of the report relating to the award of damages to the parcel mentioned and it clearly shows a sufficient assessment by the commissioners. This is from a report shown f to have been sworn to on April 28, 1909. October 1, 1909, a hearing was had on the exceptions. Evidence was offered, pro and eon, on the question as to the sufficiency of the damages awarded the defendants named, both for the parcel condemned and for the injury done the severed parts of the original tract. The city also offered evidence. tending to show that in making their award the commissioners had taken into consideration all proper elements of damages to exceptors’ property. The court, on October 11, overruled the exceptions. On November 3,1909, evidence that the assembly approved — 215 — the report in proper time was filed, and the court rendered judgment, prefacing it with this: “Now on this day this cause coming on to be heard upon the report of the commissioners, filed May 7, 1909, comes plaintiff by its attorneys,” etc. “It is therefore considered, ordered and adjudged, that said report he and the same is in all things approved, confirmed,” etc. No objection to the form of the judgment is suggested. On November 5, appellant was, on her motion, made a party defendant on the' ground that she had purchased from the Commonwealth Trust Company, the property which, as above stated, it had previously held as trustee for Pelagie Taylor. November 5, 1909, she filed her motion for new trial and this being overruled she appealed. Appellant contends “that the judgment of the circuit court is void” because (a) it purports to’confirm the commissioners’ report filed May 7, 1909, and that report had been withdrawn and superseded by one filed June 11, 1909; (b) no time after June 11, 1909, was given the city in which to report the .result to the municipal assembly for its information and approval, and (c) there was (it is asserted) no evidence of the assembly’s approval of the result of the commissioners’ report, and (d) the court attempted to render a special judgment in favor of the city and against defendants for benefits assessed, and to create a special lien and award special execution against property benefited. I. The allegations in the exceptions to the effect that the commissioners had not allowed the Trust Correcting Matters of Form. Company and Pelagie Taylor any damages except for that part of their property actually taken do not prove themselves nor did they constitute any evidence of the facts alleged. No evidence of any substantial defect in the report was offered and the record here — 216 — .shows none. Appellant does not abstract any report ■of the commissioners and does not show what correction was made nnder the leave granted June 11. Her argument assumes that whatever the correction was its effect was to destroy the report filed May 7, and on that assumption proceeds to the conclusion that since the judgment purports to be based upon that report, it also is absolutely void. There being nothing to show what correction was made and the trial court having acted upon the report and treated it as unaffected by the correction, the usual presumption supporting rulings and judgments of trial courts leaves, on this branch of the case, but the single inquiry whether the circuit court in a case of this kind can permit any sort of correction to be made in the report of the cominissioners without eliminating that report and, by the correction permitted, bringing a new one into existence. In Long v. Talley, 91 Mo. 1. c. 309, it was held that in proceedings in the county court to establish a public road that court had the power to require the commissioners to amend their report in particulars in which it was not sufficiently specific. It was said such report occupied the position of a verdict and was amendable on the principle warranting amendments of verdicts. In Woolsey v. Tompkins, 23 Wend. 1. c. 327, the court had under consideration the question of the right of commissioners in proceedings to lay out a road to amend clerical errors in their report and in an opinion by Chief Justice NelsoN the court said: “But I perceive no objection to the amendment made. The reversal of the order of the commissioners and determination to lay out "the road were quasi-judicial acts, and could not be reviewed or altered by the judges; but making up the record of the proceedings was immaterial. It would be strange i'f a slip’ in doing so must be fatal. In the administration of jus — 217 — tice in courts of record, it is a matter of course to amend clerical errors; indeed, there is scarcely a paper or record in the proceedings there hut at this day is amendable. Absolute accuracy is beyond human care and power; and the most intolerable confusion and mischief would ensue a denial of this right there, or in all like proceedings.-” In Pott’s Appeal, 15 Pa. St. 1. c. 416, a proceeding to lay out a public road, the Supreme Court of Pennsylvania said: • “The exceptions filed to the action of the court below are entirely destitute of merits, and we deem it necessary thus to notice them particularly, only to express our approbation of the course pursued in sending their report back to the viewers for correction in a point not touching the propriety of laying out the road in question. It was done in pursuance of a recommendation I ventured to suggest in the case of the Towamencin Eoad, 10 Barr, 195. That recommendation was founded in experience of the vexatious trouble, expense, and inconvenience to which parties were frequently put by the practice of setting aside reports of reviewers, upon mere technical grounds, not in any degree touching the merits of the controversy. It frequently happened that, after years- of struggle, accompanied by the bitterness of feeling too apt to accompany these discussions, a report of re-reviewers was set aside for some trifling omission of form, such as occurred in this instance — neglect to note improvements on the draft — and the parties left just where they had begun; and thus the strife was renewed, possibly again to end in the same way. Every one, with the least practical knowledge of this subject, must have felt this to be an evil, of which the case before us is a pregnant example.” Mr. Lewis in his treatise on Eminent Domain, vol. 2, sec. 641, recognizes the same doctrine: All these authorities and others (Cambria Street, 75 Pa. — 218 — St. 1. c. 363; Boyer’s Road, 37 Pa. St. 1. c. 259; Greenville & Columbia Railroad v. Nunnamaker, 4 Rich. 107) recognize the distinction between setting aside a commissioners’ report and sending it back to them to correct some clerical error or matter of form. In this last cited case (1. c. 111) the applicable statute provided that the commissioners must take into consideration “the loss or damage” and also “the benefit or advantage” resulting to the land owners and “state particularly the nature and amount of each.” The report in this case failed to “set out the particulars of damage as required by the act,” and a motion was filed to set aside the report on that ground. Upon the question thus raised, the court said: “But the omission was an informality which may be amended by requiring the commissioners to supply, in the return which they have made, the par-, ticulars of the damage which they assessed. The motion was, not to amend, but to set aside the return and vacate the proceedings of the commissioners, in order that the subject should be recommitted to them, or to others to be appointed in their stead. The return cannot be set aside unless the commissioners proceeded illegally or wrongfully in making the valuation. If their proceedings be regular and conformable to the ■direction of the act, but the return be incomplete, the proper course is to order the return to be amended, not set aside.” ' It is provided in section 7 of article 6 of the charter of the city of St. Louis that: “The report of said commissioners ■ may be reviewed by the circuit court on written esceptions . . . and the court shall make such order therein as right and justice may require and may order a new appraisement upon good cause shown . . .” That the court might, under this provision, exercise its inherent power to cause clerical errors to be corrected is hardly disputable; and that the court’s — 219 — ■discretionary power (St. Louis v. Buss, 159 Mo. 1. c. 13) to award a new appraisement could only arise upon good cause shown is the clear meaning of the •charter. No new appraisement or recommitment was asked or awarded, but the order was simply that the report might he corrected, doubtless in a matter of form, and not that a new, or additional, or supplementary report might be filed. In such circumstances it is right that the correction or amendment thus made should be held to relate back to the filing of the report, not to change the report into a new one. There is authority for this conclusion. [In re Washington Street, 19 R. I. 1. c. 159, 160.] If this is not correct, then it would appear that the inherent power of the circuit court to correct clerical errors, or to cause them to be corrected, is subject to the limitation that it does not-exist in condemnation proceedings. There is no reason to think this true, and this court was not of that opinion in Long v. Talley, supra. The fact that the proceeding is one in invitwn is of no consequence, since the requirement that in such proceedings every command of the law must be obeyed in no wise conflicts with the power of the court to cause the record and proceedings to speak the truth when some •clerical misprision has caused it to speak something else. II. So far as concerns the failure of the record to show, on or after June 11, a second reference of the report to the municipal assembly, it will suffice to Report to City Council: Charter Provisions of St. Louis. say that since the correction made did not change in the least the amount of damages awarded, and related back to the filing of the original report, the granting of additional time was not necessary. Further, without discussing whether in any circumstances appellant could raise this question, the city not complaining, it may be added — 220 — that the charter requirement (Sec. 9, art. 6) is that when the commissioners’ report is filed “the court shall give to the city of St. Louis, upon application of the city counselor, reasonable time to report the result of the same to the assembly;” and since no such application was made by the city counselor after the correction was made, the failure of the court to grant, on its own motion, additional time is not a weapon appellant can now use to destroy the judgment. The contention that there was no evidence of the approval of the report is based upon the assumption that the report of June 11, 1909, was an entirely new report and falls with that assumption.. III. With respect to the assignment that the court rendered judgment making the benefits assessed ErrorreiUC*iCÍal a special lien and awarding a special execiltion against the property benefited, which, it is contended, runs contrary to the rule announced in St. Louis v. Brinckwirth, 204 Mo. 280, it is sufficient answer that the judgment attempts to fix no such lien on appellant’s property and awards no such execution against her. The error, if any, could not and did not affect appellant, and the 'general rule, that an appellant cannot complain of an error by which he is not prejudiced, is entirely applicable in a case of this kind; and so it has been held heretofore. [St. Louis v. Lanigan, 97 Mo. 1. c. 180.] The questions raised are purely technical. Appellant took title subject to these proceedings (So. Ill. & Mo. Bridge Co. v. Stone, 174 Mo. 1. c. 35) and after the report was corrected her predecessors in title had been accorded a fair hearing on the question of the sufficiency of the damages awarded. On the evidence the court found the amount allowed, which amount was not affected in the least by the correction, was sufficient to compensate for all damage inflicted. The sufficiency of the evidence to support this finding is — 221 — not questioned. The court acted on the report before it (Lemp v. Lemp, 249 Mo. 1. c. 305) and there was never actually but one report in the case. If this judgment was reversed and the cause remanded on the grounds urged, the sole effect would be to require the trial court to base its judgment on the report as corrected, there being no complaint of any irregularity prior to the correction. Since the damages awarded and benefits assessed were wholly unaffected by the correction, and since a trial of the justice of these has been had, and there was not in any event any error in failing to grant further time for a report to the assembly, the sole practical question really is whether this court, in the circumstances of this ease, will reverse this cause in order to compel the trial court to change the reference in the judgment to the date of the commissioners’ report from “May 7th” to “June 11th.” The answer to that question is that the judgment is affirmed. Broim, G., concurs. PEE CURIAM. The foregoing opinion of Blaze, €., is adopted as the opinion of the court. All the judges concur.