
    St. Louis and Kansas City Railway Company, Appellant, v. Russell et al.
    Division One,
    June 14, 1899.
    Condemnations: commissioners’ award withdrawn: amount oh judsment. In a condemnation proceeding for the right of way for a railroad, where there has been paid to the landowners the amount of the commissioners’ award, and at a subsequent trial by a jury they assess the damages at a sum in excess of such award, the judgment should not be for the entire amount of the verdict, but for the difference between the award and the verdict. But, where the judgment has been for the entire amount awarded by the jury, and on appeal it is impossible to determine whether or not the commissioners’ award was ever paid defendants, and there is nothing in the record to show that the matter was ever formally brought to the attention of the trial court, the appellate court will not interfere.
    
      Appeal from Johnson Circuit Court. — Hon. G-eo. F. Longan, Special Judge.
    Aeeirmed.
    Geo. P. B. Jaceson for appellant.
    Tbe judgment was erroneous and the motion in arrest should have been sustained. Plaintiff was entitled to a judgment condemning a right of way over the land described in the petition and vesting in plaintiff an easement in defendant’s land for the purposes of such right of way upon payment of the excess of the verdict over the amount awarded by the commissioners and received by defendant. Instead of that the court simply rendered an ordinary money judgment against plaintiff for the amount of the verdict of the jury, without any credit or adjustment on account of the money paid by plaintiff to the clerk and received by defendant. This was wrong and should have been corrected on the motion in arrest. Railroad v. Clark, 119 Mo. 357.
    
      O. L. Houts for respondents.
    Tbe case of Tbe St. Louis & Kansas City Railway Company v. Donovan, 149 Mo. 93, settles every proposition involved in tbe record in tbis case. Tbe Donovan case was well considered, and motion for rebearing filed, considered and overruled.
   YALLIANT, J.

Tbis is a proceeding to condemn a right of way for plaintiffs’ railroad through defendants’ farm. Upon tbe filing of tbe petition in tbe office of tbe circuit clerk of Johnson county in vacation, the clerk issued a summons to tbe defendants to appear before tbe judge of that court on August 8th, 1895, which was duly served, and tbe defendants appeared as required. Thereupon tbe judge of that circuit beard tbe petition, and after finding tbe facts on which to base bis order, appointed commissioners as tbe statute requires, who-filed their report showing that they bad performed tbe duty imposed on them and assessed tbe defendants’ damages by reason of tbe appropriation of them land and tbe operation and maintenance of plaintiff’s railroad thereon at $4,007.

Tbe sum was deposited by tbe plaintiff with tbe clerk of tbe court, tbe. plaintiff took possession of the land and the-defendants received tbe money from tbe clerk. Both parties-filed exceptions to tbe report and demanded a jury to assess tbe damages. Plaintiff afterwards withdrew its demand for a jury, but insisted on its exception to tbe commissioners’' award on tbe ground that it was excessive. At tbe October term, 1895, tbe court made an order sustaining tbe exceptions, setting aside tbe report of commissioners and directed a reassessment of damages to be made by a jury. Accordingly a jury was impaneled and tbe inquiry bad, which resulted in awarding tbe defendants $5,500 damages. Thereupon a judgment in the usual form was entered for that sum in favor of defendants against tbe plaintiff, and a decree vesting tbe title to tbe land condemned in plaintiff for tbe purpose of a right of way to take effect on tbe payment of tbe money judgment.

Tbe cause is bere on plaintiff’s appeal. Tbe facts shown by tbe record in this case are in all respects similar to those which passed under our judgment at this term of court in tbe case of St. Louis & Kansas City R’y Co. v. Donovan, 149 Mo. 93, with only tbe difference that in that case there was nothing to show that tbe defendants bad withdrawn from tbe clerk the amount of tbe commissioner’s award,' and there was nothing in tbe judgment vesting tbe title to tbe land condemned in tbe plaintiff.

Tbe consideration of this case has necessarily brought up for reconsideration tbe propositions involved in tbe case above mentioned, and as we are satisfied that tbe conclusions reached in that case were correct there is no necessity for a further discussion of those propositions except in tbe light of tbe difference in the first, as above noted.

It was urged in tbe Donovan case, and is urged with renewed force bere, that tbe defendants were not entitled to a judgment for tbe full amount of tbe jury’s verdict when it appeared tb’at they bad already received a large part of tbe amount in tbe form of tbe commissioners’ award.

Tbe principle contended by tbe plaintiff’s counsel is correct, and if tbe facts in tbe case are as claimed, and if they bad been brought to tbe attention of tbe trial court at tbe time, tbe judgment should have contained a recital of those facts and should have been rendered for only tbe difference between tbe award of tbe jury and tbe amount already received by tbe defendant. But it does not appear that tbe matter was brought to tbe attention of tbe court in any fprm in which it could be so treated.

Tbe record on this point, although not entirely barren, as in tbe Donovan case, is yet very meagre. We infer from tbe recital in tbe record that tbe money was deposited with tbe clerk in vacation and by him in vacation delivered to defendants. At the trial the plaintiffs counsel referred to this fact as a ground for an oral motion to overrule the defendant’s exceptions to the commissioners’ report. And again in the motion for a new trial it is referred to not as entitling the plaintiff to a reduction of the judgment, but as error in the court to hear the exceptions without first requiring the defendants to refund the money received from the clerk, it was only in that connection and for those purposes, that the matter was brought to the attention of the court, or that the court was asked to predicate any action upon it. And even then the counsel seem' to have only assumed that it was a fact, and that the court knew it. But it does not appear in the record here that it was a matter of record in such shape as that the trial court could take cognizance of it, nor was there any proof of it offered to the court, nor does it appear that it was brought to the trial court’s attention at the only juncture in the proceedings in which it was proper to be taken into consideration. If the fact that the defendant withdrew from the clerk the amount of the commissioners’ award is in such shape on the record of the circuit court as would entitle the plaintiff to a judgment here correcting the judgment of that court, or remanding it to be corrected, a transcript of that part of the record ought to be here; in its absence we can not assume that the circuit court erred in the form of the judgment it rendered. There is nothing in this record on that point but a recital which is meagre and unsatisfactory, and not sufficient to authorize this court to pronounce the-judgment of the circuit court incorrect. The matter, for the purpose of giving the-plaintiff credit for any payment to which the record in the circuit court may show him entitled, is still in the hands of that court.

We perceive no error in the record, and therefore the judgment is affirmed.

All concur.  