Department of Highways and Public Works v. Gamble
| Decision Date | 17 February 1934 |
| Citation | 73 S.W.2d 175,18 Tenn.App. 95 |
| Parties | DEPARTMENT OF HIGHWAYS AND PUBLIC WORKS et al. v. GAMBLE et al. |
| Court | Tennessee Court of Appeals |
Certiorari Denied by Supreme Court June 23, 1934.
Appeal in Error from Circuit Court, Moore County; R. W. Smartt Judge.
Condemnation suit by the State of Tennessee Department of Highways and Public Works and others against Marvin Gamble and others, in which some of defendants filed a petition asking for damages. The county court awarded damages, and Frank W. Webster Commissioner of Highways and Public Works for the State of Tennessee, filed a petition in the circuit court for writs of certiorari and supersedeas, seeking to have the case transferred for trial de novo and to supersede the judgment for damages. The circuit judge awarded the writs on condition, and the state commissioner moved to dismiss defendants' suit for damages. From a judgment awarding damages, the Department of Highways and Public Works and R B. Setliff, road commissioner, and others appeal in error.
Affirmed and cause remanded, with direction.
Roy H. Beeler, Atty. Gen., John L. Neely, Asst. Atty. Gen., and W. C. Cook, of Dickson, for the state.
Parkes & Parkes, of Lynchburg, for defendants in error Gamble and others.
This is a condemnation suit brought in the county court of Moore county, under chapter 867 of the Private Acts of 1921, by state of Tennessee department of highways and public works, and R. B. Setliff, road commissioner of Moore county, against the defendants in error, certain landowners, to condemn a right of way 50 feet wide through defendants' lands for the construction of state highways Nos. 15 and 55 in Moore county; the purpose being to take the county highway which was not wide enough and construct out of it a state highway by condemning land on each side sufficient to make the road 50 feet wide, as appears from a map filed as Exhibit A to petition.
Process was issued and served on the defendants notifying them of the filing of the petition as required by said act, but only a few of the defendants made defense, and all the other defendants who are now interested in the case did not make defense.
On September 14, 1927, a decree was entered in the county court condemning the right of way and ordering the road to be opened by the county road commissioner and the state department of highways and public works, who were empowered to enter upon and take possession of said right of way for the purpose of constructing the highway according to the map and plat made by the state highway department on file in the case; but at that time the question of damages was reserved until after the completion of the road.
It appears that some of the defendants who are not now interested in the case contested the location of the road and their matters were afterwards settled.
It appears that after this judgment of condemnation the department of state highways and public works took possession of the right of way and constructed the state highways above mentioned, and in February, 1933, the defendants now interested filed a petition in the county court reviewing the facts that the county road commissioner and the state department of highways and public works had condemned a right of way through said lands for state highway purposes and had taken possession of the same under the orders or judgment of the county court, and asked for damages against both the county and the state of Tennessee under the provisions of chapter 57 of the Public Acts of 1931, insisting that the county was liable when the property was taken and that the state was liable under said last-named act as the question of damages was undetermined when the act was passed, and they prayed for a hearing as to their damages, and that notice of the filing of the petition be given to the road commissioner of Moore county and to the state commissioner of highways and public works, and that subpoena issue and be served on them.
The clerk, on February 8, 1933, issued a notice or summons to Davidson county for F. W. Webster, commissioner of highways and public works for the state of Tennessee, requiring him to appear and make defense on February 23, 1933, and the same was served on him on February 14, 1933, by a deputy sheriff of Davidson county.
The Attorney General of the state filed on February 22, 1933, a motion to quash the summons issued by the county court and served on the state commissioner for insufficiency of form, in that the summons was issued to Davidson county and served on the state commissioner of highways and public works without it being shown that it was a counterpart summons from Moore county.
On February 23, 1933, an order was entered in the county court reciting the fact that the commissioner of highways and public works of the state, through the office of the Attorney General for the state, had "filed a plea, and no action was taken thereon by the court, but action is deferred to such time as counsel for such Commissioner desires to present the same to the court for action thereon."
Later on a final judgment was entered in the case in the county court reciting that the case had been heard on February 23, 1933, and action thereon had been deferred until February 25, 1933, as the court had taken the same under advisement, at which time the county judge announced his conclusion, awarding damages to the respective defendants whose lands had been taken and who had not been settled with, naming them, and the amount of damages awarded to each. He held that the state of Tennessee was primarily liable under chapter 57 of the Public Acts of 1931, and that Moore county was secondarily liable.
On April 21, 1933, Frank W. Webster, commissioner of highways and public works of the state of Tennessee, by and with the consent of the Attorney General, filed a petition in the circuit court of Moore county for writs of certiorari and supersedeas, seeking to have the case transferred from the county court to the circuit court for a trial de novo, and to supersede the judgment for damages. In his petition he reviewed the procedure in the case and alleged that the judgment for damages in favor of the respective defendants and against the state of Tennessee was unjust for many reasons set out in the petition, and that the petition for certiorari was resorted to in lieu of appeal for the reason that he and the Attorney General had no notice of the entry of the judgment for damages in the county court until a short time before the filing of said petition.
The circuit judge awarded the writs of certiorari and supersedeas on condition that the department of highways and public works pay in to the office of the circuit court clerk $1,136.07 to cover the damages that each defendant might recover at the trial in that court for the land condemned. The commissioner paid said amount into the registry of the court, and the writs were issued as prayed.
Thereupon the state commissioner filed a motion to dismiss the defendants' suit for damages for several reasons therein set out, which will be hereinafter more fully discussed.
The court dismissed the motion filed by the state commissioner, and the case was tried by the court and a jury and resulted in a verdict and a judgment in favor of the defendants for the respective amounts therein set out. The state commissioner of highways and public works filed motions for a new trial and in arrest of judgment, which were overruled; to which he excepted and appealed in error to this court. No bill of exceptions was prepared and filed, although several depositions were copied into the record.
Counsel for the respective parties entered into a stipulation that the actual and incidental damages awarded to each of the defendants as fixed by the court were actually sustained by the parties, and no question is made as to the amounts. It was further agreed that the right of way was surveyed out through the lands of the defendants by the engineers of the state highway department, and that the same was taken over by said department and the state highway was constructed on said right of way.
It appears that Moore county did not appeal and is not contesting the judgment against it, but the state commissioner of the department of highways and public works has assigned the following errors:
I. The court erred in overruling plaintiff in error's motion to dismiss the suit, for the following reasons:
(1) Because the petition asking for damages is a new suit against the state of Tennessee and is prohibited by law.
(2) The county court had no jurisdiction to condemn land for state highway purposes or to render judgment for damages against the state department of highways or the state of Tennessee.
(3) Because neither the state department of highways nor the state commissioner was authorized to bring this suit in the county court under a private act.
(4) Because condemnation suits for state highway purposes can only be brought by the Attorney General and district attorney in the circuit court under the eminent domain statutes.
(5) Because neither the state department of highways and public works nor the state commissioner was a party to the condemnation suit in the county court, and the petition was not signed by any one who had authority to bind the state department of highways or the state commissioner.
(6) The judgment was void because it was rendered when the case was not at issue, in that (a) there was pending a motion to quash the summons, and (b) the judgment was rendered within ten days after the service of the summons, and prior to the return day fixed by law.
II. The court erred in not quashing the summons served on the state commissioner of highways...
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