City of Aurora v. Powell

• Decision Date: 29 July 1963
• Docket Number: No. 20317,20317
• Citation: 383 P.2d 798,153 Colo. 4
• Parties: CITY OF AURORA, a municipal corporation, Plaintiff in Error, v. Harold C. POWELL, Pauline M. Powell, Silver States Savings & Loan Association, a Colorado corporation, Defendants in Error.
• Court: Colorado Supreme Court

Page 798

383 P.2d 798

153 Colo. 4

CITY OF AURORA, a municipal corporation, Plaintiff in Error, v. Harold C. POWELL, Pauline M. Powell, Silver States Savings &amp Loan Association, a Colorado corporation Defendants in Error.

No. 20317.

Supreme Court of Colorado, En Banc.

July 29, 1963.

Bernard V. Berardini, George B. Lee, Aurora, for plaintiff in error.

Hayutin & Hayutin, Denver, for defendants in error Harold C. and Pauline Powell.

HALL, Justice.

Silver States Savings & Loan Association has made no appearance in this court. We refer to the other parties as Aurora and Powells.

On March 29, 1961, Aurora filed its complaint seeking to obtain for street purposes from Powells, by eminent domain proceedings, title to the easterly 20.5 feet of Lots 37 and 38, Block 22, Aurora, Adams County, Colorado. Powells, on April 11, 1961, filed their 'RESPONSE' and put in issue several allegations of the petition.

The record before us does not fully disclose the respective positions and contentions of the parties prior to the trial before a jury. Presumably Aurora was in possession of the lands sought to be condemned and the parties were agreeable to having the jury determine:

(1) The value of the property taken by Aurora;

(2) The amount of damages, if any, to the residual lands not taken.

Trial, confined to these two questions, was had before the Honorable Hal Chapman, County Judge of Otero County, sitting as District Judge in the Seventeenth Judicial District, Adams County, Colorado.

On November 16 and 17, 1961, testimony was taken and the jury instructed, arguments completed and the jury retired to consider its verdict on the 17th. The jury was instructed to return a sealed verdict; whereupon Judge Chapman returned to Otero County to there perform the duties of his office.

On November 20, 1961, with the Hon. Jean J. Jacobucci, one of the district judges of the Seventeenth Judicial District, presiding, the jury presented its sealed verdict. By its verdict the jury found the value of the property taken to be $8,225.00, and found the damage to the residual property not taken to be $7,500.00.

The record shows that on November 20, 1961, a 'MINUTE ORDER OF COURT' was entered showing that the sealed verdict was opened and read and the following:

'IT IS ORDERED BY THE COURT that verdict is received. 10 days are granted in which to file motion for a new trial.

'Jury is excused.'

Following this episode the clerk of the court made an entry in the 'Judgment Docket' showing Aurora to be 'Judgment Debtors,' Powells to be 'Judgment Creditors,' the nature of relief to be 'Judgment by Jury,' 'damage to residue of respondents' property is $7500.00.'

Aurora filed no motion for new trial within the ten days allotted by Judge Jacobucci. The record does not disclose that any proceedings were had in the case after November 20, 1961, until December 13, 1961, at which time Aurora filed its 'MOTION FOR NEW TRIAL ON ISSUE OF DAMAGES [the $7500.00 item only] Rule 59 C.R.C.P.'

Urged as reasons for granting a new trial is that there is no evidence to support the finding of $7500.00 damages to the residue of the property.

On January 3, 1962, Powells filed their MOTION TO STRIKE Aurora's MOTION FOR NEW TRIAL, for the reason that the motion was not filed within the time allotted by the rules of civil procedure or the order of court.

On April 2, 1962, Judge Chapman returned to the place of trial and, after hearing arguments and being fully advised of the clerk's minute orders and entries in the 'Judgment Docket' and 'Judgment Book--civil order Book,' found:

'* * * that a Judgment, in accordance with the verdict heretofore rendered by a jury, was entered on Book 46-A, page 6, on November the 20th, 1961; and that the Motion for New Trial was filed December the 13th, 1961, which is over and beyond the ten days granted to the Petitioner by the Court on November 20th to file a Motion for New Trial; and, therefore, the same having not been filed within the stipulated time of the Court, the Judgment having been entered thereof on November 20, 1961, the Motion for New Trial will be stricken and denied.' (Emphasis supplied.)

Aurora is here by writ of error seeking reversal of the 'judgment of the trial court and remanding the cause herein for a new trial on the question of damages to the remainder.'

We conclude that no judgment has been entered in the case.

Aurora sought to acquire title to certain lands owned by the Powells. Neither the judgment nor the clerk has undertaken to invest Aurora with title or to divest the Powells of title to any lands.

The verdict of the jury is not a general verdict, but rather a special verdict in a special statutory proceeding. The jury, a special jury of freeholders, as provided by C.R.S. '53, 50-1-7, was instructed that:

'* * * You are concerned only with determining the amount of just compensation (as defined in these instructions) to be paid the respondent--owners in this case.'

It had only one function to perform, and that was to determine from the evidence and its view of the premises:

1. The value of the property actually taken.

2. The damage, if any, to the residue of respondents' property.

The jury made these findings of fact. Such findings do not constitute a judgment. The verdict is not a judicial determination, but rather a finding of fact which the trial court may accept or reject and utilize in formulating a judgment. To constitute a judgment, there must be a judicial act.

C.R.S. '53, 50-1-11, governing eminent domain proceedings, provides:

'The court, upon...