Mississippi State Highway Commission v. Reddoch
| Decision Date | 06 February 1939 |
| Docket Number | 33542 |
| Citation | 186 So. 298,184 Miss. 302 |
| Court | Mississippi Supreme Court |
| Parties | MISSISSIPPI STATE HIGHWAY COMMISSION v. REDDOCH et al |
APPEAL from the circuit court of Jones county HON.W. J. PACK, Judge.
Eminent domain proceedings by the Mississippi State Highway Commission against Longino Reddoch and others to condemn a right of way for a public highway. From an adverse judgment the Mississippi State Highway Commission appeals. Reversed and remanded.
Reversed and remanded.
Russell Wright, Assistant Attorney General, for the appellant.
A careful examination of this record will disclose that while the county court in term time proceeded to try the case on its merits, it did not proceed to follow the procedure relative to nine jurors returning a verdict, and did not proceed to act as a court at all, but granted only the one statutory instruction for the benefit of the jury provided in the eminent domain chapter, and refused all of the instructions asked on behalf of the petitioner; and, in all other respects proceeded to try the case simply as a special court of eminent domain, in which the presiding officer acted simply in a ministerial capacity.
In this case, we think there is no doubt that the trial should have been held de novo for the reason there was manifest error in the refusal of the county court to grant the instructions requested by the petitioner and refused, each and every one by the county court. The circuit court, in examining the record on this refused instruction, should have granted a new trial in the circuit court because of the error in the ruling of the county judge in refusing the requested instructions and in refusing to sustain the objections to the testimony as shown by the record before the circuit judges.
State Highway Commission v. Day, 180 So. 794; Holmes v Elmer, 181 So. 325.
In the case of City of Hattiesburg v. Pritchett, 160 Miss. 342, 134 So. 140, this court, on May 4, 1931, has decided this question and held that the appeal to the circuit court in eminent domain proceedings should be an appeal on the record and that such appeal should be based on assignment of errors and bill of exceptions, just as other civil appeals from the county court to the circuit court.
State Highway Commission v. Carraway, 160 Miss. 263, 134 So. 846; Miss. State Highway Dept. v. Haynes, 162 Miss. 216, 160 So. 73.
Evidence as to the particulars or details in which the property will be damaged or benefitted by the improvement is admissible so far as the same tends to show the effect of the improvement on the value of the property, but these elements are not admissible as independent items of damage or benefit.
City of Higgins, 81 Miss. 376, 33 So. 1; Schlicht v. Clark, 114 Miss. 354, 75 So. 130; 5 Enc. Er., page 204; Miss. State Highway Dept. v. Blackburn, 172 Miss. 554, 160 So. 73; State Highway Commission v. Campbell, 173 Miss. 397, 161 So. 461; State Highway Commission v. Buchanan, 175 Miss. 157, 166 So. 537; State Highway Commission v. Chatham, 168 So. 277.
Deavours & Hilbun, of Laurel, for appellees.
Chapter 256, Laws of 1932, Section 704, Code of 1930, relating to appeals from county courts, provides: "Appeals shall be considered solely upon the record as made in the County Court."
Special eminent domain courts are abolished in counties having county courts, such as Jones County, and their jurisdiction is vested in county courts.
This court has held in three cases that appeals in suits of eminent domain, brought in the county court, and appealed to the circuit court, are not triable de novo on appeal to the circuit court.
City of Hattiesburg v. Prichett, 134 So. 140; State v. Carraway, 134 So. 846; Miss. State Highway Dept. v. Haines, 139 So. 168.
Section 1491, Code of 1930, appearing in the eminent domain chapter, providing a statutory form of instruction in eminent domain cases, was enacted long before Chapter 17 of the Code providing for county courts was enacted. The instruction provided by this statute has long been recognized by the courts of this state, as a just and fair rule for the assessment of damages in cases of this character. We have not been able to find any case in the courts of this state wherein this instruction has been criticized or condemned as being unfair to either party in eminent domain cases. Chapter 17, enacted long subsequent to the chapter on eminent domain, contains no express repeal of any of the provisions of the eminent domain chapter, except Section 1481, which vests eminent domain proceedings in a special court composed of a justice of the peace and a jury. And in this chapter 17, on county courts, section 696, with reference to practice and procedure in the county courts, it is provided: "In proceedings which, if there were no county courts, would have to be brought in a court of a justice of the peace, or before a tribunal of a justice or justices of the peace, the same practice in the county court shall be followed if the matter were in said justice court, general or special."
This statute, Section 696, Code of 1930, was construed by this court in the case of Mississippi State Highway Department v. Haines et al., 139 So. 168.
It appears without doubt to us that this court, in this well considered case, has already decided the question argued here. In this case, one the jurisdiction of which was taken away from a special eminent domain court, and given to the jurisdiction of the county court, the pleadings, practice and procedure shall be the same in the county courts as in the special court of eminent domain formerly having jurisdiction.
We earnestly urge that the procedure followed by the lower courts has been in line with the statutes and the former decisions of this court, and there is no error in the procedure. But should this court decide that there was error in the procedure, certainly it would not warrant a reversal of this case, because the case was tried on its merits on evidence that would have been proper and necessary under any state of pleading and practice. If the procedure be improper, and we earnestly submit it is entirely proper, then the court should, in our opinion, announce the proper procedure, without reversing and remanding the case, which would further delay the appellees in the collection of damages to their property as awarded by the jury.
Appellant brought an eminent domain proceeding against appellees in the county court of Jones county, to condemn a right of way for a public highway over their lands. There was a trial in the county court, resulting in a verdict and judgment in the sum of $ 675. From that judgment appellant appealed to the Circuit Court on the record made in the county court. In the county court the statutory instruction prescribed in section 1491, Code of 1930, to be given in eminent domain proceedings had before a justice of the peace and a jury was given. Other instructions were asked, and refused by the court. The appellant made a motion for a new trial, which was overruled.
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