Beyer v. State

• Decision Date: 30 March 1972
• Docket Number: No. 371S85,371S85
• Citation: 30 Ind.Dec. 107,258 Ind. 227,280 N.E.2d 604
• Parties: Jackson H. BEYER et al., Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 604

280 N.E.2d 604

258 Ind. 227

Jackson H. BEYER et al., Appellants, v. STATE of Indiana, Appellee.

No. 371S85.

Supreme Court of Indiana.

March 30, 1972.

Widaman, Bowser & Reed, George M. Bowser, Warsaw, for appellant.

Theodore L. Sendak, Atty. Gen., Stephen D. Clase, Deputy Atty. Gen., for appellee.

HUNTER, Justice.

This is an appeal by Jackson and Sarah Beyer, appellants (defendants below) from an award in a condemnation suit in which the State condemned a portion of the appellants' property for highway construction purposes. On October 30, 1969, the State filed its complaint, and on December 16, 1969, the court appointed appraisers who filed their reports on January 2, 1970. They assessed damages in the amount of approximately forty thousand dollars ($40,000.00) to which on January 5, 1970, the State filed exceptions and demanded a jury trial. On March 9 1970, the trial court on its own motion set the cause for trial on March 30, 1970. On March 24, 1970, the State filed a Motion for Continuance which included an agreement to the continuance by the appellants, and the motion was overruled by the trial court on the same day. Trial by jury commenced on March 30, 1970, and at the conclusion of the evidence the jury returned a verdict in the amount of thirty-two thousand two hundred and fifty dollars ($32,250.00). Appellants filed a motion to correct errors which, after some delays, was overruled on January 9, 1971. After more delays an appeal from the denial of the motion to correct errors was finally perfected on November 4, 1971.

Appellants have presented five main contentions of error. They are as follows:

(1) The trial court committed reversible error when it denied the State's motion for a continuance agreed to by appellants.

(2) It was reversible error for the trial court to exclude from evidence certain of appellants' exhibits which were deeds of other properties which had been sold.

(3) Surprise occurred at trial due to the method of delineation on a map prepared by the State and admitted into evidence.

(4) The evidence was insufficient to support the verdict.

(5) Newly discovered evidence was brought to light and it was error for the trial court to refuse to grant a new trial on this basis.

The first question presented is whether it was reversible error to deny the State's motion for a continuance to which appellants merely agreed. The issuance involves TR. 53.3 concerning continuances which reads in part:

'Upon motion trial may be postponed or continued in the discretion of the court, and shall be allowed upon agreement of all the parties or upon a showing of good cause established by affidavit or other evidence.' (Our emphasis.)

There appear then to be three instances where a cause might be continued. First, at any time within the judge's discretion; secondly, where the parties agree to it; and thirdly, upon a showing of good cause by either party. It is the contention of the State that it is always within the sound discretion of the trial court whether to grant a continuance. Appellants contend it is discretionary in the first instance but is mandatory in the latter two instances. We agree with appellants. When the rule speaks of granting a continuance at the court's discretion it uses the word 'may'. When the rule speaks of granting the continuance when both parties agree or upon a showing of good cause the rule uses the word 'shall.' The word 'may' is permissive in nature while the word 'shall' is mandatory. It is stated in the Civil Code Study Commission Comments on TR. 53.3 found at 3 Harvey, Indiana Practice 487:

'The purpose of this rule is to permit the granting of continuances in three cases. First, by the judge in his discretion, for which an appeal ordinarily cannot be taken. Second, a continuance must be granted for good cause, in which case a party may be able to establish reversible error if it is denied. Third, a continuance must be granted if the parties agree.' (Our emphasis.)

Thus, it is clear that when the parties agree to a continuance, the judge has no choice but to grant it.

However, the cause should not be per se reversible but should be reversible only if prejudicial. The only affidavits filed with the continuance in this case were filed by the State. The only material before the trial court connecting appellants to the continuance was the written statement, 'I hereby agree to continuance of the trial of the above-entitled cause,' followed by the signature of appellants' attorney. Appellants did not present any reasons themselves for wanting the continuance nor did they object to the denial of the continuance. For the appellants to have standing to assert that it was reversible error as to appellants for the trial court to deny the State's motion for continuance to which appellants simply agreed, it was incumbent upon them to take some positive action to bring to the judge's attention their own need for a continuance.

It is stated in TR. 53.3:

'A motion to postpone the trial on account of the absence of evidence, can be made only upon affidavit, showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it . . .' (Our emphasis.)

The State's basis for a continuance was that it was not sure it could have its attorney available on the day of trial. Appellants' contention that the denial was prejudicial was that appellants' counsel did not have sufficient time to prepare for trial and search the records for comparable sales. However, appellants did not make this known to the judge in any manner whatsoever before trial much less in the form of an affidavit. They simply proceeded to trial where they presented their evidence including a number of experts, with no indication that they were not prepared for trial. The first time we learn that appellants may have needed a delay is after an unfavorable verdict! This is too late. Since the appellants failed to indicate to the trial court any individual need for a continuance they cannot now obtain a reversal simply because they agreed to a continuance sought by the State.

Appellants' second allegation of error is that it was reversible error to exclude from evidence a number of deeds concerning sales of properties in the area. An attempt was made to introduce these deeds into evidence both at the very beginning and at the very end of the trial. Appellants did not attempt to establish any basis for their admission merely stating that the deeds spoke for themselves. The deeds concerned sales of lots in the general area which had the consideration for the sale on their face or federal stamps on them to indicate the amount of consideration.

It is not clear but apparently appellants were attempting to have these deeds admitted as evidence of comparable sales. However, appellants never attempted to establish this fact nor did they make any other adequate explanation. There are special problems which arise when there is an attempt to admit evidence of the sale of another piece of property for the purpose of aiding in the valuation of the property in question. As Justice DeBruler stated in State v. Furry (1969), 252 Ind. 486, 491, 250 N.E.2d 590, 593,

'One need only examine the multitudinous factors which make separate tracts of land similar or dissimilar to realize that the variation in the character of land is limitless. No two tracts of land are identical.'

Whether or not properties are similar enough to be considered 'comparable' then must also depend on a number of factors including (but not limited to) size, shape, topography, accessibility, use, and closeness of the time of the sale to the present action. In order to be admissible there should be sufficient similarity between the properties so that it can truly be an aid to the jury and not just irrelevant and extraneous matter which would do nothing more than confuse the jury. However, where a reasonable basis for comparison exists then dissimilarities should only affect the weight to be accorded the evidence and not its competency. Therefore the general rule is that, since the admissibility of such evidence cannot be determined by any hard and fast rules, much must be left to the discretion of the trial judge. See, 29A C.J.S. Eminent Domain § 273(10), 5 Nichols on Eminent Domain § 21.31 (3d Ed. 1971). As stated in Nichols:

'Obviously, no two properties can be exactly alike, and no general rule can be laid down regarding the degree of similarity that must exist to make such evidence admissible. It must necessarily vary with the circumstances of each particular case. Whether the properties are sufficiently similar to have some bearing on the value under consideration, and to be of any aid to the jury, must necessarily rest largely in the sound discretion of the trial court, which will not be interfered with unless abused.' 5 Nichols on Eminent Domain, supra, pp. 21--54 to 21--56.

The lots referred to in appellants' exhibits were all small residential lots. The land being taken in this case it a portion of an approximately one hundred forty-four (144) acre farm. It was admitted by both sides, however, that the highest and best use of this property was for residential purposes. Evidence as to the highest and best use is clearly admissible and according to the case of Northern Ind. Pub. Serv. Co. v. Darling (1958), 239 Ind. 237, 154 N.E.2d 881, the acceptance of evidence of the voluntary prices for lots in the area of a taking of a farm tract with a highest and best use being for residential purposes was not error. However, there is no indication that it would have been error for the court to exclude the evidence if it had felt it would be of no aid in establishing the value of the property taken. In the case of Northern Ind. Pub. Serv. Co. v. McCoy (1959), 239 Ind. 301, 157 N.E.2d 181, decided a few months after the Darling case, supra, the Court quoted from Nichols:

'It is well settled that if land...