Blake v. Ohio River R.R. Co.

• Decision Date: 17 January 1900
• Citation: 47 W.Va. 520
• Parties: Blake v. Ohio River Railroad Co.
• Court: West Virginia Supreme Court

47 W.Va. 520

Blake

v.Ohio River Railroad Co.

Supreme Court of Appeals of West Virginia.

Submitted January 17, 1900-Decided March 24, 1900.

1. Judgm ent Evidence-Estoppel.

A judgment is conclusive by way of estoppel as to facts without the existence and proof or admisssion of which the judgment could not have been rendered, (p. 527).

2. questions AssumeI Res Jud lea la.

A proposition assumed or decided by the court to be true, and which must be so assumed or decided in order to establish another proposition which expresses the conclusion of the court, is as effectually passed upon and settled in that court as the very matter directly decided, (p. 526).

3. Compensation Verdict Judgment--Estoppel.

The O. R. R. Co. instituted proceedings under section 14, chapter 52, Code, for condemnation of gravel, stone, etc., the property of B. Commissioners reported nine hundred and fifty dollars as just compensation, etc. Applicant paid same to the clerk of the court in vacation. B. excepted to the report on ground of inadequacy of compensation, and demand- ed a jury, which was impanneled, and rendered a verdict for two thousand, five hundred dollars. Judgment was rendered in favor of B. for "the sum of one thousand, live hundred and fifty dollars, being the amount of two thousand, live, hundred dollars aforesaid, less the nine, hundred and fifty dollars heretofore paid into court by said railroad company," etc., to which judgment the O. R.R.Co. obtained a writ of error to the supreme court, and the judgment was affirmed. The clerk, without paying over the nine hundred and fifty dollars, died insolvent. B. brought her action of assumpsit against the O. R. R. Co. for the nine hundred and fifty dollars. Held, that B.'s judgment was res adjudicata as to the fact of the payment of the nine hundred and fifty dollars into court, and B. is estopped from prosecuting a claim for the same against the O. R. R. Co. (p. 525).

I

Error to Circuit Court, Cabell County.

Action by Cappie B. Blake against the Ohio River Railroad Company. Judgment lor plaintiff, and defendant brings error.

Reversed.

Vinson & Thompson, for plaintiff in error. Campbell, Holt & Campbell, for defendant in error.

McWhorter, President:

On the 8th day of July, 1892, the Ohio River Railroad Company, under the provisions of chapter 52, Code, after notice to the owner, Cappie B. Blake, made application to Justice T. W. Taylor, of Cabell County, to appoint commissioners to ascertain what would be a just compensation to be paid said Blake for certain gravel and dirt proposed by it to be taken for use in the construction and maintenance of its road, etc. Commissioners were appointed, and qualified, and reported Blake's damages or compensation at nine hundred and fifty dollars, which report was filed in the clerk's office of the circuit court of said county. Blake excepted to the report for inadequacy of compensation, and demanded a trial by jury to ascertain the compensation. Applicant paid the said sum of nine hundred and fifty dollars to the clerk of the said circuit court in vacation, and took possession of the property and removed the gravel. The matter was tried before a jury in said court, and the jury returned a verdict for Blake for two thousand nine hundred and thirty-three dollars damages. Applicant moved to set aside the verdict as excessive, and the court put the owner to an election to remit lour hundred and thirty-three dollars of the verdict, or to have the verdict set aside and a new trial awarded. She elected to accept two thousand live hundred dollars in lieu of the verdict, and the court overruled the motion to set aside the verdict and grant a new trial, and rendered judgment as follows: "It is therefore considered by the court that the said Ohio River Railroad Company do pay to the said Cappie B. Blake the sum of one thousand five hundred and fifty dollars, being the amount of two thousand five hundred dollars aforesaid, less the nine hundred and fifty dollars heretofore paid into conrt by said railroad company, with interest thereon till paid, and the costs of this proceeding, both before the justice and in this court. It is further considered by the court that, till the one thousand live hundred and fifty dollars aforesaid shall have been paid, the said railroad company shall have no right or authority to enter upon said premises described in the proceeding, or to remove therefrom any earth or gravel. It is further considered that, when the said sum shall have been paid, the said company may enter upon said premises so described, and remove the earth and gravel therefrom, to the extent fixed in the verdict, and no more. It is further ordered that the clerk of this court pay to said Blake the said nine hundred and fifty dollars heretofore paid into his hands by the applicant, less the one hundred dollars paid by her consent to her tenant." Applicant paid the one thousand live hundred and fifty dollars. The clerk failed to ray over the money, or any part of it, and died insolvent. The State, at the relation of Blake, brought an action of debt on the clerk's official bond to recover the same against his sureties thereon. The court held (and was affirmed by this Court) that "the payment of money to the clerk in vacation is not equivalent to the payment of money into court, and, if the clerk fails to return such money into court, the sureties on his official bond cannot be held responsible for its loss." State v. Enslow, 41 W. Va. 744, (24 S. E, 679). Blake then brought her action of assumpsit against the applicant, the Ohio River Railroad Company, for the said sum of nine hundred and fifty dollars, in the circuit court of Cabell County. Defendant pleaded the general issue, and, by permission of the court, filed six special pleas in writing, over the plaintiff's objection; plaintiff joining issue on each of said pleas. The matters of law and fact arising in the case were submitted to the court, in lieu of a jury, and upon a full trial the court found the issues for the plaintiff, and assessed her damages at one thousand and fifty-four dollars, and rendered judgment thereon. Defendant moved the court to set aside its finding and grant it a new trial, which motion the court overruled; and the defendant excepted, and fled its bill of exceptions, and obtained a writ of error, assigning as error that, if Blake had a right of action at all against appellant for the money sought to be recovered, it was not assumpsit, and the court should have sustained the demurrer of defendant to plaintiff's declaration. There was no demurrer interposed, as shown by the record, and the court passed upon none. The pleas entered by defendant were the general issue and the six special pleas mentioned. The amount of damages had been ascertained as provided by law, and the larger portion of it, if not all, had been paid, and appellant had taken possession of the property sought to be condemned, although technically wrongfully, if the damages were not all paid, as it had no right, under the statute, to take possession until the whole of the damages ascertained were paid; yet, the amount being ascertained and certain, plaintiff's proper action, if any she had, was assumpsit for the unpaid portion...