Backus v. Gartner

• Decision Date: 21 December 1891
• Citation: 89 Mich. 209,50 N.W. 646
• Court: Michigan Supreme Court
• Parties: BACKUS et al. v. GARTNER, Circuit Judge.

50 N.W. 646

89 Mich. 209

BACKUS et al. v. GARTNER, Circuit Judge.

Supreme Court of Michigan

December 21, 1891

Application by Absalom Backus and others for mandamus to compel George Gartner, circuit judge, to set aside an order made by him. Granted.

Dickinson, Thurber & Stevenson, for relators. F. A. Baker, for respondent.

CHAMPLIN, C.J.

This is a petition asking for a mandamus to compel the circuit judge of Wayne county to set aside an order made by him setting aside an award of the jury in condemnation proceedings and awarding a new trial, and for an order directing the confirmation of the verdict of the jury. The petition shows that on the 24th of January, 1891, the Fort Street Union Depot Company-a railroad corporation created and existing under the laws of the state of Michigan-filed its petition in the circuit court for the county of Wayne, in due form, to acquire title as against the relators for the uses of an elevated railroad upon River street in the city of Detroit, a public highway of said city, in front of the relators' property abutting on said street, and described in the petition so filed in accordance with chapter 93 of Howell's Annotated Statutes, entitled "Union Railroad Station and Depot Companies," and especially under "subdivision 3" of section 3464 of said statutes. That in and by said petition the relators are made respondents, and a copy of the petition is set forth, and to which reference is made. That such proceedings were duly had in accordance with the statute, that the jury was duly impaneled to determine whether or not public necessity required the taking of the property of the relators in said street for the purposes of said railroad company and the public use, and, if so, to appraise and determine the damages and compensation to be allowed the relators therefor. That an inquisition in said matters submitted to them was entered upon by the jury, and they made and filed their report in writing on the 18th day of March, 1891, certifying that they were unable to agree either as to the public necessity or as to the compensation that thereafter another jury, on the 10th day of June, 1891 was impaneled, and continued their inquest until the 16th day of July, 1891, when they filed their report including the testimony, from which it appears that they a warded damages as compensation to the relators, as follows To Absalom Backus, Jr., $17,850; to A. Backus, Jr., & Sons, $78,293. On the following day the railroad company applied to the said circuit judge for an order staying proceedings 30 days to enable it to move for a new trial. which motion was granted, and the order entered staying proceedings. August 15, 1891, the railroad company, through its counsel, filed in said matter a motion to vacate and set aside the verdict, award, and report of the jury in this cause, and grant a new trial on the questions of public necessity, and of the compensation or damages which ought justly to be awarded to the respondents. A copy of the motion is annexed to the petition. That the relators presented to the court an objection and protest against any consideration of the motion by the court or judge, on the ground that the said judge had no jurisdiction or authority whatever to grant said motion or to entertain it. A copy of the objections and protest are annexed to the petition. That, in addition to said objection and protest, and expressly reserving the same without waiver, the relators also presented to the court and filed in said matter, together with said objection and protest, two affidavits of D. Farrand Henry, and one of Absalom Backus, Jr., tending to show that between the time of rendering said verdict and the filing of said motion for a new trial the said railroad company had entered upon and taken possession of the property sought to be condemned, without paying said award of said jury. Copies of the affidavits are annexed to the petition. And the petition further states that the relators moved the court thereupon for a confirmation of said verdict and award, basing said motion not only on the files and records of the proceedings in said matter, but upon the said affidavits. The relator shows further to the court that before the hearing of the motion, and in answer to one of the grounds thereof, charging that the jurors had partaken of lager-beer with their luncheon, he filed the affidavits of nine of said jurors that the verdict had been agreed upon before the said luncheon, and before partaking of the said beer, and before the said beer was brought into the room. That a copy of one of said affidavits of said jurymen, and which affidavit and the facts therein correspond to all the affidavits of said jurymen, is annexed. That the motion came on for hearing before the Hon. GEORGE GARTNER, circuit judge, was argued, and on the 26th day of October, 1891, the said circuit judge in form granted said motion, and caused to be entered upon the records of the circuit court for the county of Wayne a formal order granting said motion, as follows: "In this cause, on motion of said complainant for an order setting aside the award heretofore made by the jury in said cause, and for the impaneling of another jury in said cause, having been heretofore argued and submitted, after due consideration thereon, it is ordered that the award heretofore made by the jury impaneled in said cause, and entered therein, be, and the same hereby is, set aside and held for naught; and it is further ordered that a new jury be impaneled in said cause, in accordance with the statute governing such proceedings. GEORGE S. HOSMER, Presiding Judge." This order is dated October 26, 1891.

The motion above referred to, to vacate and set aside the verdict, is based upon the following grounds: "(1) The jury were not attended by a judge of this court, or by a circuit court commissioner, to decide questions of law, and to administer oaths to witnesses. (2) The attorney for the respondents, taking advantage of the absence of the judge did erroneously and falsely claim and pretend to and before the said jury that the petitioner, the Fort Street Union Depot Company, has power under the statutes of this state to condemn a right of way for an elevated railroad along the margin of the property of the Michigan Central Railroad Company, on the south side of River street, and for that reason the jury ought to find that there is no public necessity for taking a right of way in and upon said River street for the elevated railroad proposed by the petitioner; and thereby said attorney did, by repeated arguments and assertions to and before said jury, convince many of said jury that the property of the Michigan Central Railroad Company could be condemned by the petitioner under existing statutes, so that when said jurymen came to yield on the question of necessity they were so biased and prejudiced against the petitioner that they insisted upon the most extravagant, exorbitant, and grossly excessive damages, to the great wrong and injury of the petitioner. (3) The attorney for the respondents, in opening their case to the jury, among other things, said to them: [Here setting out in the motion, at considerable length, the argument of the counsel before the jury upon the question of necessity, and his effort to make it appear that such necessity for using the street did not exist, for the reason that they could condemn the property of the Michigan Central Railroad, adjoining the street, for such purposes. It is not necessary to set out the speech in this opinion.] (4) The attorney for the respondent, on his cross-examination of the witness James B. Mulliken, put the following questions, for the purpose of leading said jury to believe that the petitioner could condemn property of the Michigan Central Railroad Company, and that Mr. G. V. N. Lothrop, general counsel of the Detroit, Lansing & Northern Railroad Company, had so advised that company: 'Question. Who are the general counsel of the D., L. & N.? Answer. Mr. Charles B. Lothrop. Q. Before that, Mr. G. V. N. Lothrop? A. He was formerly. Q. That being the best route, was there ever any talk about the power of the said railroad company wanting terminal facilities to condemn Michigan Central ground? A. Mr. Lothrop told me at one time there was no difficulty in doing that. Q. Which Lothrop? A. G. V. N. Lothrop.' (5) Although it clearly appeared on the further examination of said witness, James B. Mulliken, and by the testimony of said G. V. N. Lothrop, that the advice and opinion of said Lothrop was that the property of the Michigan Central Railroad Company could not be condemned without additional legislation, he did claim and pretend to and before said jury that under the advice and opinion of said Lothrop the petitioner could condemn a right of way along the margin of the Michigan Central Railroad, on the south side of River street." The sixth objection is based upon the argument of the respondents' counsel before the jury at the close of the testimony before the petitioner. It is not necessary to insert the argument here. The seventh objection is also based upon the argument of the counsel for the respondents who assisted the attorney on the trial before the jury, and is not necessary to advert upon or refer to here. The eighth objection is based upon the argument and statement of the attorney for respondents with reference to the testimony introduced, and it is not necessary to further advert to it. The ninth is also based upon the closing argument of the counsel before the jury. The tenth objection is also based upon the closing argument before the jury, which is set out at length. "(11) The jury erred in refusing to receive the testimony of the witness Phil. C. Miller, offered by the respondent in...