Housing Authority of City of Jasper v. Deason

• Decision Date: 07 August 1969
• Docket Number: 6 Div. 675
• Citation: 225 So.2d 838,284 Ala. 431
• Parties: The HOUSING AUTHORITY OF the CITY OF JASPER v. Lillian G. DEASON et al.
• Court: Alabama Supreme Court

Page 838

225 So.2d 838

284 Ala. 431

The HOUSING AUTHORITY OF the CITY OF JASPER v. Lillian G. DEASON et al.

6 Div. 675.

Supreme Court of Alabama.

Aug. 7, 1969.

Hoyt Elliott, Jasper, for appellant.

Tweedy & Beech, Jasper, for appellees.

MERRILL, Justice.

This appeal is from a judgment denying the condemnor's motion to retax the costs in a condemnation suit involving four parcels of land where the fees of the three commissioners were set by the probate court at $1,000.00 each and regular appeals were taken from the judgments of condemnation in all four cases.

The commissioners made the following awards:

                Parcel 1, Deason,   $43,425.00
                Parcel 2, Herndon,  $11,200.00
                Parcel 4, Melton,   $20,500.00
                Parcel 5, Brown,    $19,865.00
                

The fees of the commissioners were not set separately as to each tract but their total compensation was set at $1,000.00 each.

Appellant, condemnor, appealed to the circuit court from the separate awards, but before trial, appellant settled with the owners of Parcels 1, 2 and 4. The appeal on parcel 5 is still pending in circuit court. There was no reservation relating to costs in the judgment of condemnation in the circuit court as to parcel 4 when it was settled, but the following reservation was contained in the judgments as to parcels 1 and 2:

'It being made known to the Court by the attorneys for the petitioner that said petitioner is contesting the amount of fees or compensation allowed to the appraisers in this case for their services in appraising the property which includes all the property consisting of four (4) different tracts in the above numbered case and the petitioner having requested a hearing to determine the amount of fees that should be paid to said appraisers.

'It is the order, judgment and decree of the Court that a hearing to determine the amount of fees to be paid will be held by the Court at a later date and the petitioner is not required to pay at this time any amount for the appraisers services in this case.'

Sometime during the litigation one of the commissioners, Russell, settled out of court, and the instant appeal concerns only commissioners Wilson and Calmes.

Prior to a 1943 amendment, commissioners in condemnation proceedings in probate court received 'the pay of jurors,' which included days served, mileage etc., but since 1943, § 30 of Tit. 19 has read in pertinent part:

'The costs of the application and proceedings thereunder, including the compensation of commissioners, who shall receive reasonable compensation to be fixed by the judge, must be adjudged and assessed against the applicant and his surety for costs, for which execution may issue. * * *'

It is apparent that prior to 1943, the compensation was merely a matter of calculation, but since then, it has been a judicial matter 'to be fixed by the judge.'

Title 19, § 17, provides for an appeal from an order of condemnation to the circuit court within thirty days and the trial shall be de novo. On appeal under this section, we have held that the court tries de novo not only the question of damages and compensation but also the right to condemn under Tit. 19, § 7; with the question of damages and compensation being a question for the jury, and the right to condemn to be determined by the court without the aid 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 originated in the circuit court. The case stands in the circuit court on the process and pleadings, without judicial action upon them, precisely as it would have stood at that stage of the proceedings, if the case had been initiated in that court in the first instance. Lipscomb v. Bessemer Board of Education, 258 Ala. 47, 61 So.2d 112, and cases there cited. Clearly, the fixing of reasonable compensation for the commissioners was 'judicial action,' and was a matter to be considered on appeal by the circuit judge if raised.

So far as we are advised, this court had not considered how a question of 'reasonable compensation' of commissioners in eminent domain proceedings should be decided on appeal. We hold, and we think the Legislature so intended, that the amending words, 'reasonable compensation to be fixed by the judge' should be determined by the court without the aid of a jury when that question is raised on appeal just as the right to condemn is handled on appeal. Both being essentially questions of law, and for the court, the aid of a jury is not necessary for their disposition.

Next, the question arises as how to raise the question of reasonable compensation for commissioners which is before the circuit court by virtue of the appeal.

We think the proper way is by a motion to retax the costs under Tit. 11, § 77, Code 1940. It will be noted that it specifically applies to costs taxed in probate courts. It provides:

'If the taxation of costs be excessive, by charging the costs of witnesses who were not examined, or by charging costs to an improper party, or taxing costs contrary to law, the party aggrieved may move the court for a retaxation, setting forth the particulars in which the clerk has erred. This section shall apply to costs taxed in probate courts in all cases, and proceedings where such courts have jurisdiction; and any aggrieved party to any cause or proceeding may move the circuit court, or court of like jurisdiction in the county where such cause or proceeding is pending, for a retaxation of such costs, setting forth the particulars wherein such probate court costs were improperly taxed; and such motion may be heard on five days' notice to the officers or persons claiming said fees or costs; and the same shall be passed on by the judge as other motions are heard and passed upon; and from a judgment or order refusing or granting any motion made under this section an appeal lies to the supreme court as in other cases.'

Appellant contends that § 77 of Tit. 11 has no application on the ground that § 77 'is for the purpose of retaxing costs which have been charged by the Clerk, Register, or other administerial officers.' Cited is a statement from Williams v. Williams, 251 Ala. 564, 39 So.2d 7, which says that 'the motion to retax costs (Tit. 11, § 77) is designed to correct errors made by the clerk, register, or other ministerial officer in the taxation of costs,' and an additional sentence from Burrow v. Berry, 213 Ala. 317, 104 So. 786, which states: 'A motion to retax costs does not open up an inquiry into the merits of the order or decree or judgment of the court under which the clerk or register follows in making the taxation.' This latter statement was dictum in Burrow because this court there held that the motion appealed from was not a motion to retax costs under the statute.

We agree that a motion to retax costs in a condemnation suit does not open an inquiry into the questions of the right to condemn or the amount of compensation or damages due the property owner, but we do think that it opens up the question of the reasonableness of the commissioner's compensation. This is because Tit. 19, § 30, the first sentence of which is quoted supra, provides that the compensation of the commissioners shall be included in the costs in probate court, and when the cost bill of the probate court comes up to the circuit court on appeal, it is the duty of the clerk to list that item as a part of the costs. If the condemnor thinks the amount is excessive, he may file a motion to retax the costs under Tit. 11, § 77, 'setting forth the particulars in which the clerk has erred.' This is a matter for determination of the circuit court without a jury as we have already stated....