Ellering v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Decision Date: 29 January 1909
• Citation: 107 Minn. 46,119 N.W. 507
• Parties: ELLERING v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.
• Court: Minnesota Supreme Court

107 Minn. 46

119 N.W. 507

ELLERING

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

Supreme Court of Minnesota.

Jan. 29, 1909.

Appeal from District Court, Stearns County; M. D. Taylor, Judge.

The Minneapolis, St. Paul & Sault Ste. Marie Railway Company sought to appropriate lands of Bernard Ellering by condemnation proceedings. From the judgment of the district court on appeal from the award of the commissioners, the railway company appeals. Affirmed.

Syllabus by the Court

In an appeal from a verdict in condemnation proceedings it is held that certain objections, not covered by assignments of error and not argued in appellant's brief on appeal, are not properly presented for consideration.

A notice of appeal from an award of commissioners to the district court, served after notice of filing of report, perfected the appeal, although a prior notice of appeal had been served before notice of filing had been given.

Alleged defects in the charge of the trial court are within Stienbauer v. Stone, 85 Minn. 274, 88 N. W. 754.

The trial court did not abuse its discretion in allowing plaintiff to open and close to the jury. Minn. Valley Ry. Co. v. Doran, 17 Minn. 188 (Gil. 162), followed.

Alleged erroneous ruling on evidence did not result in prejudicial error. A. H. Bright and Reynolds & Roeser, for appellant.

J. D. Sullivan, for respondent.

JAGGARD, J.

The defendant and appellant railroad company sought to appropriate certain lands belonging to plaintiff and respondent by condemnation proceedings. The commissioners assessed damages to plaintiff at $1,700. The plaintiff served notice of appeal immediately after the filing of the report, and on the same day, and later on, after the commissioners had served notice of filing of the award, plaintiff took the appeal to the district court. There a jury awarded him damages in the sum of $3,500.

1. A meritorious contention by defendant is that ‘the damage awarded by the jury in this case was clearly excessive, and was not justified by the evidence. This was assigned as one of the grounds for a new trial. On appeal to this court, however, no assignment of error was directed to it, except this: ‘The court erred in denying appellant's motion for a new trial upon several grounds alleged in the notice thereof.’ It is clear that this assignment is insufficient in itself. Moreover, the question was not argued in defendant's brief. Accordingly it is impossible for us to reverse on this ground.

2. It is also urged in argument in this court that the trial court erred in instructing the jury that it might take into account, in assessing damages, the inconvenience and damages to the landowner in crossing the railroad track on the public highway. It is very doubtful whether this was covered by the assignments of error. Present practice on that point is, however, extremely liberal. The consideration which finally determines that this question cannot be considered is that the point was raised for the first time upon oral argument in this court.

3. There is no merit to the assignment of error addressed to the alleged error of the court in refusing to compel the plaintiff to elect upon which appeal he would proceed to trial-the one taken before the serving of the filing of the award of the commissioners, or the one taken subsequent thereto. Section 2532, Rev. Laws 1905, provides ‘that the appeal may be taken at any time within 30 days after service of the notice that the report has been filed.’ The trial court properly held that but one appeal had been taken. The notice of appeal given prior to the service of the notice that the report has been filed was of no legal validity. The district court heard the case upon the appeal perfected by the second notice.

4. The trial court did not submit to the jury the issue whether the tract of land was used as one farm and constituted but a single tract of land. Defendant contends that the trial court erred in assuming these facts as a matter of law. No request to charge on this point was made, by defendant, and no objection to the charge given was made before it retired....