City of Eufaula v. Ahrens

• Decision Date: 11 July 1916
• Docket Number: 6945.
• Citation: 159 P. 327,58 Okla. 180
• Parties: CITY OF EUFAULA v. AHRENS ET AL.
• Court: Oklahoma Supreme Court

159 P. 327

58 Okla. 180

CITY OF EUFAULA v. AHRENS ET AL.

No. 6945.

Supreme Court of Oklahoma

July 11, 1916

Syllabus by the Court.

An order setting aside the report of commissioners, appointed to view the property and assess damages sustained by property owners in condemnation proceedings, and directing a new appraisement is interlocutory and not final, and an appeal will not lie therefrom.

Error from District Court, McIntosh County; Preslie B. Cole, Judge.

Condemnation proceedings by the City of Eufaula against Kate S. Ahrens and others. On motion of defendants the report of the commissioners was set aside and a new appraisement ordered and plaintiff brings error. Dismissed.

Carl W Gust, of Eufaula, for plaintiff in error.

Jess W Watts and Alvin F. Molony, both of Wagoner, for defendants in error.

HARDY J.

The city of Eufaula, a municipal corporation, instituted proceedings to condemn certain lands within its corporate limits for street purposes. The proceedings were regularly conducted according to statute, resulting in the appointment of commissioners who inspected said property and assessed the damages sustained by the owners thereof, and made a report in writing to the clerk of the district court in which the proceedings were pending, as required by law. Thereafter upon motion of the property owners alleging that the commissioners had viewed the property and appraised the damages without notice to or an opportunity to be heard by the said owners, and upon the ground that the damages assessed were inadequate, the report of the commissioners was set aside and a new appraisement ordered, to which action the city reserved exceptions and prosecutes error.

Defendants in error file a motion to dismiss this appeal upon the ground that the order complained of is not a final order involving the merits of the action. The statute under which the proceedings were had is found in section 1400, and certain succeeding sections, of Rev. L. 1910; and by section 1402 it is provided that the report of the commissioners may be reviewed by the district court on written exceptions filed by either party in the clerk's office within 60 days after the filing of such report, and the court shall make such order therein as right and justice may require, either by confirmation, rejection, or by ordering a new appraisement on good cause shown; and said section further provides that either party may demand a jury trial within 30 days. Section 1403 in part is as follows:

"Either party aggrieved may appeal from the decision of the district court to the Supreme Court; but such review or appeal shall not delay the prosecution of the work on such railroad over the premises in question, if such corporation shall first have paid to the owner of said property, or deposited with the said clerk for said owner, the amount so assessed by said commissioners or district court. * * *"

While the language quoted indicates that the statute is applicable to proceedings by railroad corporations, the next section, 1404, makes the provisions of this article apply to all corporations having the right of eminent domain.

The question here presented is whether the order of the court sustaining the exceptions to the report of the commissioners and directing a new appraisement, is a final order such as may be reviewed by this court on appeal. That the court had authority to direct a new appraisement is shown by section 1402. Plaintiff in error says in this connection, however, that the court was without power to entertain and hear said exceptions for the reason that they were not filed within 60 days after the filing of the report of the commissioners, as required by said section. If the order is not of such a nature as that from which the statute authorizes an appeal, that question cannot be considered and determined in this proceeding. The right of appeal in this character of proceeding is granted by section 1403, and an examination of its language convinces us that it contemplates a final disposition of the proceeding; for it is provided in that section that such review or appeal shall not delay the prosecution of the work of the corporation over the premises sought to be condemned, in the event such corporation shall pay to the owner of the property taken the amount awarded by the report of the...