State ex rel. State Highway Commission v. Manley

549 S.W.2d 533, 1977 Mo. App. LEXIS 2048

• Court: Missouri Court of Appeals
• Decided: February 22, 1977
• Docket: No. 35751
• Status: Published

Opinions

DOWD, Judge.

A condemnation suit. On October 24, 1961, following the initial hearing, condemnation was ordered and commissioners appointed to assess damages sustained by defendants. Both plaintiff, hereinafter referred to as the state, and defendant Mun-day filed exceptions to the commissioners’ damage award in March, 1962. Ten years later, in February, 1972, the state set its exceptions for trial. Defendant Munday filed a motion to dismiss the state’s exceptions for failure to prosecute, which was overruled. The trial court entered judgment against defendant Munday for a total sum of $937.00, the amount by which the commissioners’ award exceeded the jury verdict, together with interest at the rate of 6% per year from May 15, 1962, the date of payment of the award. Defendant Mun-day appealed.

The state’s motion to dismiss the appeal contending non-compliance with Rule 84.-04(d) is denied.

The question to be decided on this appeal is whether the trial court erred in denying defendant Munday’s motion to dismiss the state’s exceptions for failure to prosecute. Numerous other points of error are raised by appellant, but resolution of this question makes it unnecessary to reach the others.

We believe that City of Jefferson v. Capital City Oil Co., 286 S.W.2d 65 (Mo.App.1956), which held that 5 years and 4 months was an unreasonable delay in prosecution of a city condemnor’s exceptions, ab sent a valid excuse for the delay, is controlling authority on the issue. In that case the court, affirming the dismissal below, noted that the decision to dismiss for failure to prosecute is a discretionary one with the trial judge, not to be disturbed on appeal unless such discretion is abused. The present case comes to us in a different posture, and, mindful of the deference due the trial court in a discretionary ruling, we are reluctant to reverse the order below denying defendant’s motion for dismissal. However, we are compelled to reverse when discretion is abused, as we find to be the case here. The exceptions had been pending for 10 years, nearly twice the time found to be unreasonable delay in City of Jefferson, supra. The trial court did not give any reasons for failing to grant the motion to dismiss in the light of such a lengthy delay. Nor does our examination of the record reveal any valid excuse for the 10 year delay. We find the state’s excuses for the delay to be without merit.

The state contends that its delay is justified by: 1) the fact that one parcel of land was the subject of a suit to quiet title from the time of filing the condemnation petition until August, 1967, 2) the failure of appellant to notify the state of the termination of that litigation, and 3) the failure of appellant to pursue his own exceptions. No reasons are given by the state to explain why the suit to quiet title necessitated delay in prosecuting its exceptions. Both parties to the suit to quiet title were made defendants in the condemnation suit; which of the parties would choose to defend in the trial on the exceptions should not have concerned the state. The only issue at a trial on exceptions is the amount of compensation to be awarded for the taking, State ex rel. State Highway Comm’n v. Harris, 417 S.W.2d 29, 31[2] (Mo.App.1967); City of Jefferson, supra at 69[5], and this determination can be made without a final decision as to who holds title to the property. Condemnation suits would needlessly remain pending indefinitely if the state delayed prosecution on its exceptions every time title to the land taken is in dispute. It is noted that the quiet title action was terminated in August, 1967 and it was not until 4½ years later (February, 1972) that the state set the exceptions for trial. Neither do we agree with the state’s contention that defendants had an obligation to notify the state of the termination of the suit to quiet title. The state had the responsibility to pursue its own lawsuit without relying on defendants to notify it of a matter of public record. The state’s third point was addressed in City of Jefferson, supra at 69, where the court held that the fact that the defendant had filed exceptions did not have any bearing upon his right to move for dismissal for failure to prosecute.

Our appellate courts have frequently pointed out that the volume of cases filed requires courts to dispose of cases with reasonable promptness in order to avoid a backlog which subjects litigants to unreasonable and excessive delay in having their cases heard. With this caveat in mind, we hold that the 10 year delay in prosecution is an unreasonable delay for which the state has not presented a valid excuse, and that under these circumstances, the trial court’s failure to grant defendant’s motion to dismiss was an abuse of its discretion.

Accordingly, the judgment is reversed and the case remanded to the trial court for entry of a judgment of dismissal for failure to prosecute.

CLEMENS, P. J., dissents in separate opinion. WEIER, J., concurs.