Idaho Farm Development Co. v. Brackett

• Decision Date: 11 May 1927
• Docket Number: 4527
• Citation: 257 P. 35,44 Idaho 272
• Parties: IDAHO FARM DEVELOPMENT COMPANY, a Corporation, Appellant, v. CHESTER E. BRACKETT, Administrator of the Estate of IRA BRACKETT, Deceased; SARAH E. BRACKETT, J. F. CLARK, INEZ CLARK et al., Respondents
• Court: Idaho Supreme Court

257 P. 35

44 Idaho 272

IDAHO FARM DEVELOPMENT COMPANY, a Corporation, Appellant, v. CHESTER E. BRACKETT, Administrator of the Estate of IRA BRACKETT, Deceased;

SARAH E. BRACKETT, J. F. CLARK, INEZ CLARK et al., Respondents

No. 4527

Supreme Court of Idaho

May 11, 1927

NEW TRIAL-MEMORANDUM DECISION-CONSENT TO REMITTITUR-EFFECT-FINAL ORDER-TRIAL-OBJECTION TO TESTIMONY SUSTAINED-EMINENT DOMAIN-INADMISSIBLE TESTIMONY - EVIDENCE - UNQUALIFIED WITNESS.

1. Defendants' acceptance of terms of "memorandum decision" of certain date is not an acceptance of terms of order of same date that they remit a certain amount of damages awarded, otherwise new trial is granted; the decision under C. S., sec. 7194, not being in force or binding till embodied in an order signed by the judge or entered on the minutes.

2. Defendants' notification of willingness to stipulate a judgment with plaintiff for a certain amount is not a consent that judgment be reduced, within order for new trial unless defendants consent to remit.

3. Consent of part of defendants does not satisfy order for new trial, unless the defendants consent to remittitur.

4. Where order grants new trial unless defendants consent within thirty days to certain diminution of judgment, it becomes final on expiration of such time without such consent notwithstanding extension of time after the expiration, where made without any showing or application for relief in furtherance of justice, through mistake, inadvertence surprise or excusable neglect, under C. S., sec. 6726, as amended by Laws 1921, chap. 235, necessary to set in motion the court's discretion.

5. Sustaining objection to testimony of plaintiff's witnesses relative to conversations had with defendant's intestate was not error; there being no offer of proof as to what the conversations were.

6. Testimony as to value of land sought to be condemned, so far as based on what it is worth to condemnor, is inadmissible.

7. Motion to strike the testimony of witness is properly denied as too broad, only part of the testimony being objectionable.

8. Witness is not qualified to testify to value of lands, not being shown to be familiar with them or acquainted with reasonable market value.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. William A. Babcock, Judge.

Condemnation proceeding. Judgment for damages in favor of condemnees. Reversed and remanded.

Order denying a new trial set aside and cause remanded. Costs to respondents. Petition for rehearing denied.

Edwin Snow and Arthur W. Ostrom, for Appellant.

A judgment by stipulation and consent cannot be appealed from. (Ocobock v. Nixon, 6 Idaho 552, 57 P. 309; Erlanger v. Southern Pacific Ry. Co., 109 Cal. 395, 42 P. 31.)

The rule is well settled that the trial court has no power to require a party against whom an injustice has been committed by excessive verdict of the jury to consent to a lesser judgment and thereby cut off his right of appeal. (Hall v. Northwestern Ry. Co., 81 S.C. 522, 62 S.E. 848; Jackson v. Southern Cotton Oil Co., 81 S.C. 564, 62 S.E. 854; Nashville, Chattanooga & St. Louis R. R. Co. v. Foster; 10 Lea (Tenn.), 351; St. Louis & N. A. R. Co. v. Mathias, 76 Ark. 184, 113 Am. St. 85, 91 S.W. 763; see note, 39 L. R. A., N. S., 1065.)

"Where defendant was granted a new trial unless plaintiff accepted a reduction of the damages within five days, the order granting a new trial became absolute on plaintiff's failure to comply with the condition within the time fixed." ( Winningham v. Philbrick, 56 Wash. 38, 105 P. 144.)

"An order of the district court denying a new trial is final and the judge has no jurisdiction to grant a rehearing and make another order granting the motion." (Spivey v. District Court, 37 Idaho 774, 219 P. 203.)

"The declaration of a party to the suit concerning the land in question, including offers to sell, may be received when such statements are in the nature of admissions." (Jones on Evidence, sec. 169, and cases cited.)

Walters & Parry, E. M. Wolfe and S. T. Hamilton, for Respondents.

The trial court has the jurisdiction and power to grant an extension of the time fixed in a previous order within which a party may file a remittitur of damages. (Harris v. Speirs, 55 Utah 474, 186 P. 446.)

Rejection of testimony as to price at which owner of real estate offered to sell it one or two years thereafter is not reversible error where period is one of changing values, and there is no offer to show the amount of change.

"In cases where a court may fix a time limit within which a party to an action may do an act the determination of which is manifestly within the court's discretion, why has it not the inherent power to extend the time limit as first fixed? We confess our entire inability to perceive any reason why it may not do so." (Harris v. Speirs, supra.)

VARIAN, Commissioner. Brinck, C., Wm. E. Lee, C. J., Givens, Taylor and T. Bailey Lee, JJ., concurring.

OPINION

VARIAN, Commissioner.--

This is an action to condemn certain lands in Twin Falls county for a reservoir site under a Carey Act project. Two parcels of land are involved, one belonging to Ira Brackett and Sarah Brackett, his wife, and the other to Frank Clark and Inez Clark, his wife. Ira Brackett died before the trial, and his administrator was substituted as a party defendant. Counsel stated at the hearing that a settlement had been reached with the Clarks, and there is no issue now as to them. The Brackett land consists of 320 acres, of which 262.1 acres are required by appellant for its reservoir site. This case has been here before (Idaho Farm Development Co. v. Brackett, 36 Idaho 748, 213 P. 696), and was reversed and remanded for a new trial, which was had in November, 1923. The jury awarded the Bracketts $ 36,225.25 for their lands, and appellant moved for a new trial. On February 11, 1924, the trial court passed on the motion for a new trial, and by a minute entry on that date ordered:

"That the judgment should be set aside and a new trial granted on the ground of excessive damages awarded by the jury, unless the defendants, by stipulation, consent within thirty days to remit therefrom the following amounts:

"From the award to the lands of Ira Brackett actually taken, $ 8,955.00.

"From damages awarded to remainder of the Ira Brackett land by reason of land taken, $ 123.00."

Certain reductions were also made by the court from the award to the Clark lands. The order further stated:

"In case of such remittance, the motion will be denied."

On March 10, 1927, 28 days after the entry of the order passing on the motion for a new trial, attorneys for respondents filed what they denominate "Notification of Willingness to Stipulate," reading as follows:

"Comes now the defendants, Chester Brackett, Administrator of the estate of Ira Brackett, deceased; Sarah E. Brackett, J. F. Clark and Inez Clark, defendants in the above entitled case, and by and through their attorneys, Messrs. Walters & Parry and E. M. Wolfe, Esq., and S. T. Hamilton, Esq., and announce to the court that said named defendants are ready and willing to stipulate with the plaintiff that the judgment heretofore entered in the above entitled cause on the 21st day of November, 1923, may be reduced, and that the defendants, Chester Brackett, administrator of the estate of Ira Brackett, deceased, and Sarah E. Brackett, shall take judgment for the sum of $ 17,442.00, with interest at seven per cent. per annum on each of said sums from January 1st, 1920, to the date of payment, together with said defendants' costs incurred in said action, or such costs as may be allowed by the court.

"This notification is made and filed by said defendants for the purpose of accepting the terms of the memorandum decision of the above entitled court dated February 11, 1924."

The plaintiff, on March 14, 1924, filed objections to this proposal of defendants upon the following grounds:

"1. That said notification is not in compliance with the condition specified in said memorandum decision.

"(a) Because filed only by some and not all of the defendants.

"(b) It does not amount to consent to the remission of any part of the verdict or judgment.

"2. If the said notification is taken as compliance with the condition specified in said memorandum decision, it has the effect of requiring plaintiff likewise to consent by stipulation to the reduced verdict and judgment standing and cuts off plaintiff's right of appeal."

On the same date, counsel for answering defendants filed a formal consent to the diminution of the damages in the case of each parcel of land, in accordance with the reductions made by the court in his order of February 11, 1924, for the defendants Chester Brackett, administrator, etc., Bert Brackett and Chester Brackett, as to the Brackett land, and for defendants Frank Clark, Inez Clark, Robert Rogerson, Rogerson and John McRae, as to the Clark land.

The court thereupon entered the following order:

"This matter came on to be heard this 14th day of March, 1924 . . upon the objections filed by counsel for plaintiff to the notification of willingness to stipulate filed by counsel for certain defendants on the 10th day of March, 1924, and after argument of counsel, it appeared to the court that said defendants had not filed a technical compliance with the order of the court dated February 11th, 1924. Whereupon, counsel for said defendants requested additional time and until today to file further compliance with the order of the court dated February 11, 1924, and the court being fully advised in the premises grants said defendants such additional time to file a further compliance with said order of February 11, 1924. Whereupon, counsel for the...