American Tel. & Tel. Co. of Wyo. v. Walker

• Decision Date: 06 March 1967
• Docket Number: No. 8096,8096
• Parties: AMERICAN TELEPHONE AND TELEGRAPH COMPANY OF WYOMING, a corporation, Petitioner-Appellee, v. Benjamin F. WALKER and Marjorie Walker, his wife, Eugenio Perez, Jr., and Margaret Perez, his wife, Amelia Del Curto Perez and Travelers Insurance Company, a corporation, Defendants- Appellants.
• Court: New Mexico Supreme Court

Page 267

427 P.2d 267

77 N.M. 755

AMERICAN TELEPHONE AND TELEGRAPH COMPANY OF WYOMING, a corporation, Petitioner-Appellee, v. Benjamin F. WALKER and Marjorie Walker, his wife, Eugenio Perez, Jr., and Margaret Perez, his wife, Amelia Del Curto Perez and Travelers Insurance Company, a corporation Defendants- Appellants.

No. 8096.

Supreme Court of New Mexico.

March 6, 1967.

Rehearing Denied May 19, 1967.

Bigbee & Byrd, Santa Fe, for appellee

Rodey, Dickason, Sloan, Akin & Robb, John P. Eastham, Robert G. McCorkle, Albuquerque, for Perez.

Modrall, Seymour, Sperling, Roehl & Harris, John R. Cooney, Albuquerque, for Walkers.

OPINION

OMAN, Judge, Court of Appeals.

This is a condemnation suit involving the determination of damages to which appellants are entitled from the condemnor-appellee. Appellee filed suit to acquire an easement across ranch lands of appellants for the purposes of installation, operation and maintenance of an underground communications cable. Two ranch properties are involved. The one ranch belongs to appellants, Mr. and Mrs. Walker, who will be referred to as Walker. The other ranch belongs to the other appellants, who will be referred to as Perez.

Walker and Perez have taken separate appeals and have filed separate briefs. However, except for point three relied upon by Walker for reversal, their positions are identical, in that they both assert that the verdict of the jury upon which the judgment was entered is not consistent with the instructions of the trial court and is not supported by substantial evidence, and in that they both seek reversal of the judgment and a new trial. Except where otherwise expressly indicated, we shall treat the appeals as one and shall refer to them in the singular.

Before proceeding to the merits of the appeal, we must first dispose of appellee's motion to dismiss upon the ground that appellants are barred from maintaining this appeal by their acceptance of the amounts awarded by the verdict and judgment.

Judgment was entered on April 30, 1965, for Walker in the total amount of $3,008.92, and for Perez in the total amount of $2,766.92. On the same date, the clerk of the district court voluntarily issued a warrant payable to one of Walker's attorneys for the full amount of the Walker judgment, and also issued a warrant payable to one of Perez' attorneys for the full amount of the Perez judgment. Neither of these warrants was ever presented for payment. Perez' attorney returned the Perez warrant on January 26, 1966. Walker's attorney has retained the Walker warrant, but the same has never been endorsed and has never been delivered to Walker. Payment of the warrants, when and if presented for payment, would have been made from monies deposited with the clerk of the court by the appellee pursuant to §§ 22--9--3 and 22--9--18, N.M.S.A.1953, the provisions of which are made applicable to public utilities by § 68--1--4, N.M.S.A.1953.

Had the warrants not been issued, the funds would have remained in the hands of the clerk, and appellee would have had no right to their return. The funds are still in the hands of the clerk. At most, appellee had the right to a return of its deposit in excess of the amounts awarded in the judgment, and it appears the clerk was equally diligent in issuing and delivering to appellee a warrant in this amount.

On May 21, 1965, Perez filed his notice of appeal from the judgment entered on April 30, 1965. Walker filed his notice of appeal on May 24, 1965. At no time since then has either indicated any intention to abandon the appeal. On June 22, 1965, the attorneys for appellee wrote attorneys for Walker and Perez, advising that appellee's attorneys were in no position to 'authorize retention (by Walker and Perez) of the amounts awarded by the jury' and that their client (appellee) 'had requested that we do all things necessary in order to maintain our position that, in fact, the jury verdicts actually rendered in the cause were excessive.'

This letter was written to the attorneys for Perez with a copy to the attorneys for Walker and commences with the following language:

'Quite sometime back, you will recall that you inquired as to whether we were in a position to authorize retention of the amounts awarded by the jury * * * although you indicated at that time you were considering the possibility of an appeal.'

It is apparent that the question of whether or not Walker and Perez could properly retain the amounts awarded by the jury, or at least could do so with the consent of appellee, arose even prior to May 21, 1965, and that, in view of appellee's refusal to so consent, counsel for Walker and Perez did not deliver the warrants to their respective clients and made no effort to cash or collect on the same. Thus, no fruits of the final judgment were accepted by appellants, as is contended by appellee, and the cases cited by appellee, in support of its position that appellants cannot retain the fruits of the judgment and at the same time proceed with an appeal therefrom, are just not applicable to the facts in this case.

The case of Warren v. New York Life Ins. Co., 40 N.M. 253, 58 P.2d 1175, so heavily relied upon by appellee, is clearly distinguishable upon the facts. In the present case, a question arose very shortly after the judgment was entered as to the rights of Walker and Perez to cash the warrants and retain the proceeds pending an appeal, an appeal was timely taken, nothing has ever been done to indicate an abandonment of this appeal, the warrants have never been cashed, and the appellee has in no way been prejudiced by the conduct of the attorneys for either Walker or Perez in retaining the uncashed warrants. See Wheeler & Motter Merc. Co. v. Kitchen, 67 Okl. 131, 169 P. 877; Washington Real Estate Co. v. Wachenheimer Bros., 71 A. 592 (R.I.1909); Phillips v. Isham, 105 Cal.App.2d 608, 233 P.2d 637; Dow v. Cowan, 23 F.2d 646 (8th Cir. 1927); Franciscan Hotel Co. v. Albuquerque Hotel Co., 37 N.M. 456, 24 P.2d 718.

Neither Walker nor Perez received or retained any benefit under the judgment, and the record clearly negatives any intent to acquiesce in the judgment, or to receive the warrants as payment or satisfaction thereof. Thus, the holdings in the cases of Wells v. Romero, 22 N.M. 191, 159 P. 1001; Culp v. Sandoval, 22 N.M. 71, 159 P. 956; State v. Fernandez Co., 28 N.M. 425, 213 P. 769; Stae v. Jemez Land Co., 30 N.M. 24, 226 P. 890, and Evarts v. Stovall, 42 N.M. 32, 75 P.2d 154 are not applicable here.

We find no merit in the motion to dismiss the appeal and the same is hereby denied.

This brings us to the merits of the appeal, and particularly to a resolution of the question of whether or not the verdict for Walker in the amount of $2,723.00, plus the accrued interest, and for Perez in the amount of $2,504.00, plus the accrued interest, is inconsistent with the instructions of the trial court and finds no support in the evidence.

The trial court's instructions, which are forty-two in number, are, insofar as the sole and ultimate issue of the amount of compensation to which Walker and Perez are entitled is concerned, all to the effect that the compensation is to be computed on the basis of the difference between the fair market value of the ranches immediately before and immediately after the taking by appellee on August 12, 1963, and that the compensation awarded must not be below the lowest evaluation of this difference as testified to by any witness, nor more than the highest evaluation thereof testified to by any witness.

A quotation of two of the court's instructions will clearly demonstrate this:

'21. In this case only a part of the defendants' property was taken. You are instructed that this taking was for public use, and that the just compensation to which defendant is entitled is the difference between the fair market value of his property immediately before and immediately after the taking, the date of taking being on and after August 12, 1963.'

'28. Although you must determine marked value for yourselves, you must base your finding of market value on the testimony that has been presented to you; and therefore, you may not arrive at an evaluation of the property that is...