Cooper v. State
Decision Date | 21 February 1963 |
Docket Number | 4 Div. 47 |
Parties | Gussie COOPER et al. v. STATE of Alabama. |
Court | Alabama Supreme Court |
Prestwood & Prestwood, Andalusia, for appellants.
Griffin Sikes, Andalusia, Special Asst. Atty. Gen., for appellee.
This is an appeal by landowners from a judgment of the circuit court condemning certain lands, or interests therein, for right of way for a public road.
The proceeding was commenced in the probate court. From the judgment of condemnation rendered by the probate court, the landowners appealed to the circuit court.
On March 21, 1960, the circuit court proceeded to trial. In the circuit court, the landowners contested two issues: first, the right of the state to condemn; and, second, the amount of the award due to be paid by the state to the landowners.
The judgment of the circuit court recites that '* * * The Court proceeded to hear all of the evidence touching on the right of the State of Alabama to condemn the lands * * *.' and that upon consideration of the state's application and the evidence offered in support thereof the court granted the application to condemn.
The transcript of the evidence indicates that the issue of the right to condemn was tried first by the court. As we understand the record, the landowners, at this first hearing on March 21, 1960, were permitted to offer all testimony they wished to offer. The transcript indicates that, at the conclusion of this hearing, the court announced: 'The Court finds that the State has a right to condemn the property in question.'
The judgment appealed from shows further that on the same day, March 21, 1960, the court proceeded to trial before a jury of the amount of damages and compensation to be awarded to the landowners; and that, as the result of certain statements made in the presence and hearing of the jury, the court declared a mistrial and discharged the jury.
The judgment further shows that on April 11, 1960, the court again proceeded to trial before a jury of the amount of damages and compensation to be awarded to the landowners; that the jury returned a verdict fixing the award for lands of appellants at $2,000.00; and that the court rendered judgment on the verdict.
The transcript of evidence shows that on April 11, 1960, prior to commencement of trial before the jury to determine amount of the award, certain proceedings were had out of the jury's presence. The landowners were claiming the right to try again the issue of the state's right to condemn. The landowners sought to introduce testimony on the issue, but the court refused to permit landowners to do so. The court made the following statements:
Right to Condemn.
The landowners argue that the court erred in ruling that the issue of the right to condemn had been determined on March 21, 1960, and in refusing, on April 11, 1960, to allow landowners to introduce evidence in opposition to the state's right to condemn. As we understand it, the landowners' reasons in support of this argument are comprehended in the following excerpts from their brief:
* * *.
'* * * * * *
'* * *. (Par. Added.)
We do not agree. This court has announced the following rule:
(Par. Added.) City of Birmingham v. Brown, 241 Ala. 203, 207, 2 So.2d 305, 308.
Appellants do not insist that the evidence was not sufficient to support the finding on March 21, 1960, that the state had a right to condemn this land. Appellants had been afforded one trial of the issue on the right to condemn. There was no mistrial on that issue. That issue is to be tried separately from the trial on the issue of the amount of the award. The mistrial on the latter issue did not vitiate the trial on the first issue. Even if it be conceded arguendo that the appellants be correct in asserting that the two issues must be tried in the 'same' trial, it does not follow that the two issues must be tried on the same day or on consecutive days.
In actions at law, the sufficiency of pleadings is ordinarily decided by the court, whereas, sometimes weeks later, the questions of liability and amount of damages may be determined by a jury. A mistrial by the jury would not, as a general rule, vitiate rulings on pleadings, in the absence of amendments thereto, and would not ordinarily require the court to determine again the sufficiency of pleadings. So in the instant case, the mistrial on the issue of amount of award did not require the court to try again the issue of the right to condemn. Assignments 1, 3, 4, and 9 are not sustained.
Continuance.
On April 11, 1960, when the court indicated that the issue on right to condemn would not be tried again, the appelants moved for a continuance. The court denied the motion. Appellants argue that this denial is error.
A motion to postpone the trial of a case is addressed to the sound discretion of the trial court and its refusal is not reviewable except for gross abuse of discretion. Evans v. Bolling, 5 Ala. 550; Shores v. Sanders, 271 Ala. 552, 126 So.2d 201. We find no abuse of discretion here.
Maps.
The state asserts that: 'Questions to be reviewed on appeal must first be presented to the trial court by motion for a new trial, and questions not so presented cannot be considered on appeal, Davis. v Smitherman, 209 Ala. 244, 96 So. 208.' The state insists that the asserted rule prevents us from considering Assignments 5, 6, 7, and 8, which relate to admission of evidence, and which present for review rulings that were not presented by the motion for new trial.
The state's assertion is not correct. Rulings of the trial court on the admission and rejection of evidence are reviewable on appeal without a motion for new trial. Travis v. Hubbard, 267 Ala. 670, 673, 104 So.2d 712; Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 226, 130 So.2d 388; Popwell v. Shelby County, 272 Ala. 287, 292, 130 So.2d 170, 87 A.L.R.2d 1148.
Landowners assign severally as error, the rulings admitting in evidence, over objection, state's Exhibits 1, 2, and 3.
Exhibit 1 purports to be a map of Andalusia. The grounds of objection stated to the court were, in substance, that the witness who identified the map and laid the predicate for its admission had nothing to do with its preparation, and that the map shows on its face that it was prepared by others named thereon.
The identifying witness testified, without objection by landowners, that he 'considered' Exhibit 1 an accurate map of the City of Andalusia. The map appears to have been used merely to illustrate to the jury the location of the proposed highway and landowners' property with relation to the city.
The authenticating witness testified that he was familiar with the highway project, that as assistant division engineer he had worked on the project, that he had had prepared under his supervision and laid on the map the routes that the proposed bypass is to take through the City of...
To continue reading
Request your trial-
Rhoads v. Virginia-Florida Corporation
...correct mean high water level (which, they claimed, was even further landward than McGill's survey showed it to be). 7 Cooper v. State, 274 Ala. 683, 151 So.2d 399 (1963). In a proceeding where precision and strict accuracy were relevant to establish a boundary, an authenticating witness te......
-
James v. Mizell
...is not necessary that the authenticity of the plat be first established by the cartographer or author of the plat or map. Cooper v. State, 274 Ala. 683, 151 So.2d 399. No merit therefore attaches to assignment of error No. Affirmed. HEFLIN, C.J., and MERRILL, MADDOX and McCALL, JJ., concur. ...
-
Southern Natural Gas Co. v. Ross
...by the court without the aid of the jury. Housing Authority of City of Jasper v. Deason, 284 Ala. 431, 225 So.2d 838; Cooper v. State, 274 Ala. 683, 151 So.2d 399; Calhoun County v. Logan, 262 Ala. 586, 80 So.2d 529; City of Birmingham v. Brown, 241 Ala. 203, 2 So.2d Title 19, § 25, provide......
-
Housing Authority of City of Jasper v. Deason
...of the jury. City of Birmingham v. Brown, 241 Ala. 203, 2 So.2d 305; Calhoun County v. Logan, 262 Ala. 586, 80 So.2d 529; Cooper v. State, 274 Ala. 683, 151 So.2d 399. We have also held that a trial de novo means a new trial just as if no trial had ever been had, and just as if it had origi......