Spaulding v. Milwaukee, Lake Shore & Western Railway Co.

14 N.W. 368, 57 Wis. 304, 1883 Wisc. LEXIS 275

• Court: Wisconsin Supreme Court
• Decided: April 4, 1883
• Status: Published

Opinions

The following opinion was filed December 12, 1882:

LyoN, J.

The defendant, the railway company, has no interest whatever in the award of the commissioners to Spauld-ing and Dane. It was content with the commissioners’ appraisal of the value of the whole parcel of land condemned to its use, and did not appeal therefrom. All it had to do was to pay into court the amount of the appraisal, and the condemnation was complete. To whom the money was distributed by the commissioners or the court did not concern the railway companjr in the least. The statute (R. S., 541, sec. 1849) gives the right to appeal from an award by commissioners to any party thereto. But the railway company is not a party to any proceedings which may be had in respect to the distribution of the money which it has paid into court pursuant to an award of commissioners. In this case the only parties to an issue upon the right of Spaulding and Dane to share in the award are Spaulding and Dane and the canal company, which is entitled to the award if Spaxdding and Dane are not. In a litigation to determine whether the lease under which the plaintiffs claim an interest in the condemned premises in fact includes any portion thereof, the canal company is an indispensable party. Yet this issue has been tried and determined on the appeal of the railway com-paiiy, without the presence of the canal company as a party to the litigation. Of course, the judgment does not bind the canal company, and hence has not determined the controversy. The railway company seems to stand in the same position in respect to the money which presumably it has paid into court pursuant to the award of the commissioners, as that occupied by a mortgagee in respect to surplus money arising upon a sale of the mortgaged premises pursuant to a foreclosure judgment, after the mortgage debt is fully paid. Of course, no one will claim for a moment that the plaintiff in the foreclosure action can appeal from an order of the court distributing such surplus money, in which he has no interest. The claimants of the money are the sole parties to such proceeding, and they alone can appeal from the order of distribution.

It is entirely clear to our minds that the railway company had no right of appeal from the award of a portion of the value of the condemned land to Spaulding and Dane, and that the appeal of the company therefrom was ineffectual to give the circuit court jurisdiction to review the award of the commissioners in that behalf. It must be held that the appeal and all proceedings therein, including the judgment, are null and void. Ordinarily this conclusion would work a reversal of the void judgment. A reversal W'ould charge the plaintiffs with the costs in this court. This would be most unjust, for the railway company instituted and prosecuted these .void proceedings and is responsible for them. It, and not the plaintiffs, ought to be charged with the costs. For these reasons, and to accomplish what is so manifestly just and right, we shall dismiss this appeal, and leave the circuit court to clear its records of the void judgment in its own way.