Hajewski v. Baltimore County Com'rs

• Decision Date: 20 December 1944
• Docket Number: 57.
• Parties: HAJEWSKI v. COUNTY COM'RS OF BALTIMORE COUNTY.
• Court: Maryland Court of Appeals

40 A.2d 316

184 Md. 161

HAJEWSKI v. COUNTY COM'RS OF BALTIMORE COUNTY.

No. 57.

Court of Appeals of Maryland

December 20, 1944

Appeal from Circuit Court for Baltimore County; John B. Gontrum Judge.

Proceeding by the County Commissioners of Baltimore county, a corporation and body politic of the State of Maryland against John A. Hajewski to condemn an easement of a right of way through defendant's land. From a judgment for defendant notwithstanding a verdict for the plaintiffs, the defendant appeals and the plaintiffs move to dismiss the appeal.

Appeal dismissed.

Marion A. Figinski, of Baltimore, for appellant.

Michael Paul Smith and M. Wm. Adelson, both of Baltimore (Lester L Barrett, of Baltimore, on the brief), for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN, BAILEY, CAPPER, and HENDERSON, JJ.

BAILEY, Judge.

Proceedings were instituted in the Circuit Court for Baltimore County by the County Commissioners of Baltimore County, a corporation and body politic of the State of Maryland, appellee here under the provisions of Sections 1 to 18, inclusive, Article 33A, Annotated Code of Maryland 1939, for the condemnation of an easement of right of way 10 feet in width and 746 feet in length, through the land of John A. Hajewski, appellant here, in the Twelfth Election District of Baltimore County, for the purpose of laying a 15 inch sanitary sewer under the same.

The jury was sworn and, after the opening statements were made by the counsel for the respective parties, it viewed the property sought to be condemned. Thereafter testimony was taken before the Court and jury. The jury found for the petitioner in the matter of its right of condemnation of the right of way described in the petition and assessed the damages sustained by the defendant at 'none'. Two days thereafter the defendant filed two motions. The first was for a judgment n.o.v., or, in the alternative, for a new trial. The grounds alleged in the motion for a judgment n.o.v. were that the verdict or inquisition of the jury was contrary to law and the evidence in the case and that the said verdict, assessing no damages, was a taking of the defendant's land without just compensation and was in violation of the defendant's constitutional rights under Section 40, Article 3, of the Maryland Constitution, and under the Fifth Amendment to the Federal Constitution. It asked the Court to set aside the verdict or inquisition of the jury, assessing no damages for the taking of the land mentioned in the petition, and any judgment entered thereon and to 'enter a judgment or inquisition for damages to be paid to the defendant in accordance with the law in the case'. The second motion was a motion in arrest of judgment, alleging that the verdict was a nullity as it did not compensate the defendant for the land taken by the petitioner and as it violated his constitutional rights in that it was the taking of his land for public use without payment of just compensation therefor.

The following order was subsequently passed by the Court:

'Upon the motion for a judgment n.o.v. filed by the defendant, John A. Hajewski, which said motion requests the Court to enter a judgment for damages in favor of the said John A. Hajewski in the above cause, and is not opposed or objected to by the County Commissioners of Baltimore County, and the Court having personally visited and viewed the land referred to in the proceedings, which is the subject of the taking, in the presence of and at the request of counsel for the respective parties, and the said cause having been fully argued and submitted, it is thereupon ordered this 20th day of July, 1944, by the Circuit Court for Baltimore County, that judgment be entered for the defendant, John A. Hajewski, for damages in the within proceedings in the amount of $100.00 for the land taken as named in the proceedings, and further that the judgment for the petitioner for the land condemned remain undisturbed.

'And it is further ordered that the motions of the defendant for a new trial and in arrest of judgment be and the same are hereby overruled and dismissed.'

It is from the award of the Court and the judgment on the award that this appeal is taken.

The appellee has filed a motion to dismiss the appeal on the grounds that it is an appeal from a judgment entered in the appellant's favor and not against him, upon his motion for a judgment n.o.v.; that such an appeal is not authorized by the General Rules of Practice and Procedure; and that it also violates the general procedural principle which prohibits an appeal by a plaintiff from a judgment in his favor. The motion to dismiss also directs this Court's attention to the fact, which is apparent from an examination of the record, that no exceptions were taken or reserved by the defendant, appellant here, to the admission of any evidence or to the trial court's oral instructions to the jury embodying the law of the case.

Judgments non obstante veredicto are discussed in Poe's Pleading and Practice, Vol. 1, sec. 722. The cases there considered deal with situations in which judgment is entered for the plaintiff in spite of a verdict for the defendant, where the pleading is by way of confession and avoidance and the issue is joined on a traverse of an immaterial avoidance. Such cases are not in point here.

Trial Rule 8, of the General Rules of Practice and Procedure, Code 1943 Supplement, p. 1219, introduces in this state...