Douglas v. Indianapolis & N.W. Traction Co.
| Decision Date | 14 February 1906 |
| Docket Number | No. 5,487.,5,487. |
| Parties | DOUGLAS et al. v. INDIANAPOLIS & N. W. TRACTION CO. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Clinton County; Joseph Claybaugh, Judge.
Proceedings by the Indianapolis & Northwestern Traction Company against Thomas W. Douglas and others to condemn lands for a right of way. From a judgment in favor of petitioner, defendants appeal. Affirmed.W. R. Moore, for appellants. Pierre Gray, for appellee.
In the court below, appellee, by filing an instrument of appropriation, sought to appropriate a strip of land belonging to appellants, Thomas W. Douglas and his wife, Nettie B. Douglas, for a right of way as authorized by an act of the General Assembly approved March 11, 1901 (Acts 1901, p. 461, c. 207; sections 5468d, 5468e, Burns' Ann. St. 1901), and as amended by an act approved February 26, 1903 (Acts 1903, p. 92, c. 36; sections 5468d, 5468e, Burns' Ann. St. Supp. 1905). By this instrument it is made to appear: That Douglas and Douglas were the owners of the real estate sought to be appropriated That Sherman L. Culbertson was and is a tenant of said owners, and in possession and claiming some interest in the real estate, the nature of which is unknown to appellee, and is made a party in order that he might protect any interest he might have in or to the real estate sought to be appropriated. E. X. Le Seure is made a party as mortgagee, in order that he may protect his interest. Douglas, Douglas, and Culbertson appeared and answered by a general denial. No answer by Le Seure. Upon such act of appropriation such proceedings were had that appraisers were appointed who assessed and awarded to Douglas and Douglas and Culbertson, appellants herein, the sum of $2,550 as damages. On August 24, 1903, Douglas, Douglas, and Le Seure acknowledged the receipt of the entire sum of $2,550 so awarded by such appraisers, and on the same day Culbertson receipted to said clerk for his interest in said award. That within the time allowed therefor appellee in the court below duly filed its exceptions to said award for the reason that “(1) the award of damages is too large; (2) the award of damages is excessive.” Other reasons were assigned, which, on motion of appellants, were by the court stricken out. A general denial to the exceptions formed the issue. Upon a trial by jury the damages of Thomas D. and Nettie B. Douglas were assessed at $2,000.
The transcript before us shows that the verdict of the jury was returned on March 15, 1904; that on March 17th the following order book entry appears, omitting the formal parts: “Come the defendants by W. R. Moore, and move the court for a venire de novo.” It does not appear that any written motion was filed, or that reasons were assigned in its support. On June 24th, from an order book entry made on that day, we take the following: “And the court having considered the motion of defendants, Thomas W. Douglas and Nettie B. Douglas and Sherman F. Culbertson, for a venire de novo, now overrules the same, to which ruling of the court said defendants at the time except separately and severally, and said defendants also jointly except to said ruling.” Thereupon the court rendered judgment setting aside the award of the appraisers, and judgment in favor of Thomas B. Douglas and his wife, Nettie B. Douglas, for $2,000, as their damages on account of the appropriation of a strip of ground, particularly describing it, being the same land described in the instrument of appropriation, and vesting the title thereto in appellee as and for a right of way for its railroad. The court also found that on August 12, 1903, appellee had paid to the clerk of the court for the use of Douglas, Douglas, Le Seure, and Culbertson the sum of $2,550 so awarded by the appraisers, which had been accepted as heretofore stated, and rendered judgment against Douglas and Douglas for $550, with interest, making in all the sum of $578.50, together with its cost from and including the filing of the exceptions. Appellants, Douglas, Douglas, and Culbertson, filed their motion to modify the judgment by striking out all that part relative to the recovery by appellee of the $550 and interest, for the reason (1) that that part of the judgment is without the issues; (2) because, Douglas and Douglas being nonresidents of the state at the time of the bringing of this action, the pleadings do not authorize a personal judgment; that the court had no jurisdiction over the persons of each of the appellants to enter personal judgment. This motion was overruled and exceptions reserved. Each appellant separately assigns the same errors and discusses the same questions.
1. Our attention is called first to the motion for a venire de novo, the overruling of which is assigned as error. A venire de novo is a common-law remedy, and by it such defects only as may be apparent on the face of the record are presented. Dolan v. State, 122 Ind. 141, 23 N. E. 761;La Follette v. Higgins, 129 Ind. 412, 418, 28 N. E. 768. While there has been some modification of this remedy in respect to special verdicts, the old rule still remains as to general verdicts (Maxwell v. Wright, 160 Ind. 515, 67 N. E. 267) and defects appearing upon the face of the record (Elliott's General Practice, § 985). There are a number of grounds upon which a venire de novo will be awarded, as, for instance, that the verdict on its face is so uncertain, ambiguous, or defective that no judgmentcan be rendered thereon, or a failure to find upon the issues between the parties, or by not assessing damages, or on account of some material omission, or the wrongful allowance or disallowance of a challenge to a juror; and no doubt other grounds might arise sufficient to call this remedy into action, but the ones given will be sufficient to illustrate our purpose.
In the case at bar the motion was oral. The order book entry and the bill of exceptions furnish the only evidence that such a motion was made. The order book entry copied in the record shows that it was joint, while the bill of exceptions assures us that it was several. The record on this question is contradictory, and has furnished no little discussion as to which should control, the order book entry or the bill of exceptions. On this point we have concluded to hold that the bill of exceptions should be considered as authentic, and will therefore control the order book entry. Avery v. Nordyke & Marmon Co., 34 Ind. App. 541, 70 N. E. 888, and cases cited. In support of the right to make the motion orally, our attention is called to the case of Swift v. Harley, 20 Ind. App. 614, 618, 49 N. E. 1069. In that case the motion was written, and reasons assigned in its support. The manner in which the motion was made was not before the court, and therefore what was said on the proposition of an oral motion was clearly dictum. Without deciding whether the motion must be in writing or may be made orally, it is sufficient to say in either case the record must disclose the ground upon which it was based and pointed out to the trial court. This it does not do. The action of the trial court in overruling the motion is here for review. There one reason may have been assigned as a basis for the motion, and here another. The presumption is that the trial court correctly ruled upon the question as it was then presented, and, the record being silent as to any reason urged in that court as a cause for granting the motion, the question on appeal will be deemed to have been correctly decided by it.
Elliott, in his work on Appellate Procedure (section 763), in speaking of the requisites of a motion for a venire de novo, says: -citing in support of this principle Deatty v. Shirley, 83 Ind. 218, from which case he quotes the following: If no defects were pointed out to the trial court, or grounds stated for such motion, there was no error in...
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