18 N.W. 51 (Neb. 1883), Missouri Pacific Railway Co. v. Hays

Citation:18 N.W. 51, 15 Neb. 224
Opinion Judge:LAKE, CH. J.
Party Name:MISSOURI PACIFIC RAILWAY COMPANY, PLAINTIFF IN ERROR, v. JESSE L. HAYS, DEFENDANT IN ERROR
Attorney:John L. Webster, for plaintiff in error, J. H. Broady, for defendant in error,
Case Date:December 19, 1883
Court:Supreme Court of Nebraska
 
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18 N.W. 51 (Neb. 1883)

15 Neb. 224

MISSOURI PACIFIC RAILWAY COMPANY, PLAINTIFF IN ERROR,

v.

JESSE L. HAYS, DEFENDANT IN ERROR

Supreme Court of Nebraska

December 19, 1883

ERROR to the district court for Richardson county, where the cause had been brought on appeal by Hays from an award of damages for the location of the right of way of the M. P. R. R. over his land, etc. There was a trial, and a verdict in favor of Hays for $ 275. This verdict was set aside on motion of Hays and a new trial granted. At the second trial, before DAVIDSON, J., verdict in favor of Hays for $ 860, judgment, motion for new trial overruled, and the R. R. company came up on a petition in error.

REVERSED AND REMANDED.

John L. Webster, for plaintiff in error, on setting aside first verdict, cited: Sutherland Dam., 810. Woodward v. Leavitt, 107 Mass. 453. As to date when damages should be assessed, cited: Burt v. Merchants Insurance Co., 115 Mass. 1. Mills Eminent Domain, § 174. Logansport v. Buchanan, 52 Ind. 163. Indiana v. Hunter, 8 Ind. 74.

J. H. Broady, for defendant in error, contended that granting new trial was discretionary; that the value of the land is to be estimated at time of condemnation, which is the time when it was taken, which is the time the title passes, which is the time the money is ready, which is the time it is paid into the county court, which cannot be before filing of report of assessment. Sioux City v. Brown, 13 Neb. 319. F. E. & M. V. R. R. v. Whalen, 11 Neb. 588. Driver v. Railroad, 32 Wis. 569. Ray v. A. & N. R. R., 4 Neb. 440. O. & N. R. R. v. Menk, Id., 24. Daniels v. Railroad, 35 Iowa 129.

OPINION

[15 Neb. 225] LAKE, CH. J.

It is claimed that the court below erred in setting aside the first verdict and granting a new trial. The record before us is not in a condition to show upon what particular ground that ruling was made. In the motion for a new trial several reasons were assigned therefor, followed by the statement that, "Reference is hereby made to affidavits in support of some of the causes herewith filed." There is also appended to the bill of exceptions, but in no way made a part of it, the affidavits of persons representing themselves as members of the jury respecting the deliberations in the jury room, and giving reasons which induced them to finally assent to the verdict after having voted for a much larger one. There is nothing, however, which enables us to know that these are the affidavits referred to

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in the motion, or that they were considered by the judge in ruling upon it. Indeed, there is nothing in the record to indicate [15 Neb. 226] with certainty just what the ruling was based upon. In this respect the record is strangely defective.

There is a very large discretion given to trial judges in the matter of granting new trials. By this we by no means intend to convey the idea that their rulings in this respect are not subject to review by appellate courts, but simply that, before they will be interfered with, it must be clearly shown that some legal right of the party objecting has been disregarded. Woodward v. Leavitt, 107 Mass. 453 (9 Am. Repts. 49).

Among the grounds assigned in the motion for the new trial are, 1st, "Irregularity in the proceedings of the jury, and of the said plaintiff." 2d, "Misconduct of the jury, and particularly of the two members, Spence and Klever, and misconduct of the...

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