Neddermeyer v. Crawford County

• Decision Date: 15 December 1916
• Docket Number: 27782
• Citation: 175 N.W. 339,190 Iowa 883
• Parties: GEORGE NEDDERMEYER, Appellant, v. CRAWFORD COUNTY, IOWA, Appellee
• Court: Iowa Supreme Court

175 N.W. 339

190 Iowa 883

GEORGE NEDDERMEYER, Appellant, v. CRAWFORD COUNTY, IOWA, Appellee

No. 27782

Supreme Court of Iowa, Des Moines

December 15, 1916

OPINION ON REHEARING DECEMBER 15, 1919.

REHEARING DENIED JANUARY 20, 1921.

Appeal from Crawford District Court.--Z. A. CHURCH, Judge.

APPEAL by plaintiff from an order in condemnation proceedings whereby he was allowed $ 99 of damages for the alteration of the location of a highway.

Affirmed.

L. H Salinger, for appellant.

P. J. Klinker, County Attorney, and Andrew Bell, Jr., for appellee.

EVANS, J. LADD, C. J., GAYNOR and PRESTON, JJ., concur.

OPINION

EVANS, J.

I.

Pursuant to legal statutory proceedings, the board of supervisors of Crawford County, Iowa, changed the location of a section of highway. Both the old and the new locations were upon land of the plaintiff. He filed a claim of $ 5,000 damages. The board allowed him $ 150. He appealed to the district court, and, upon final trial therein, obtained a verdict of $ 99. The following plat will aid in an understanding of the alteration made.

The plaintiff is the owner of a farm of 800 acres. It lies in part both in Section 24 and Section 25. Section 25 adjoins on the south. Both sections are included in the plat. A north and south highway extended along their west line. An east and west highway extended along the section line between Sections 24 and 25 for the greater part of the distance. It will be noted from the plat that a railway extending from southeast to northwest cut the southwest corner of Section 24. The highway upon the section line between Sections 24 and 25 extended westerly to and over the railroad crossing, and then turned northwesterly, so as to run parallel with the railroad right of way. This section of the highway, constituting the hypothenuse of the triangle with the west and south boundaries of Section 24, is known in the record as Road No. 623. The alteration adopted consisted in vacating this section of the road, and establishing a corresponding section on the other side of the railroad right of way, appearing upon the plat as Road No. 954. The area of land taken for the new section was 1.22 acres. The area of land included in the old section, vacated, was .51 of an acre.

[SEE PLAT IN ORIGINAL]

The issue tried was, What was the damage to plaintiff's farm, caused by the establishment of the new section?

The questions to be determined upon this appeal are stated by appellant in his opening argument as follows:

"1. Was there error in overruling either or both of two motions for change of venue?

"2. Did appellant have a fair trial, in view of the allowance made him, and the fact that the panel was filled with taxpayers of the defendant county?

"3. Was there error in receiving certain testimony on damages?"

At the first trial of the case, the jury rendered a verdict for the plaintiff, but omitted, doubtless inadvertently, to state the amount. This verdict was necessarily set aside. Before the second trial, plaintiff filed a motion for a change of venue, upon the general ground of prejudice in the county. The claim of prejudice was predicated upon the theory that the jurors were necessarily taxpayers to some extent, and would thereby be influenced. This motion was overruled, and appellant assigns error thereon. The record discloses several controlling reasons why this point cannot be sustained.

1. Appropriate objections were filed to the motion. Affidavits were filed by both parties, for and against. The affiants were brought into court and examined. This examination is not presented in the printed record. The showing upon which the court acted, therefore, is not before us.

2. When the motion for change of venue was made, the case had been pending in the district court for more than 15 months. Necessarily, the case had been continued several times. The statute contemplates that an application for a change of venue shall be made, if at all, at the appearance term, if the cause therefor be then known. It cannot be made after a continuance, except for a cause not known previously. The cause for a change set forth in the motion was as apparent at the appearance term as it was when it was made. The fact that the jurors would be drawn largely from the taxpayers of the county was obvious at all times. The argument for the appellant at this point is that the result of the first trial had disclosed to him existence of prejudice, in that the jury had failed to return a verdict. But there was nothing in the action of the jury to indicate prejudice. If the failure of the jury to insert the amount of the verdict in the blank space provided was the result of anything else than an inadvertence, it is not made to appear in the record.

3. The appellant was in no manner prejudiced by this ruling. Following it, he went to trial before a Crawford County jury, and got a verdict for $ 168, which was an increase over the amount allowed by the board of supervisors. This verdict was assailed by the defendant, not by the plaintiff, and upon its motion was set aside.

Up to this point, therefore, the plaintiff had not been hurt, in a legal sense, for want of change of venue.

Subsequently, and before the third trial, he again filed a motion for a change of venue, on the same ground as before. Upon objections filed by the defendant, this motion was overruled, and complaint is laid thereon. Here again the record discloses clear reasons why this complaint cannot be sustained.

1. This motion was defective in form, in that it was not supported by the affidavits of three disinterested persons, as required by Code Section 3505.

2. There was no showing that the cause for the change was not known from the beginning. The only new discovery of the cause urged was that the result of the two previous trials indicated that he could not get justice. This was a mere conclusion on the part of the plaintiff. The result of the second trial was favorable to the plaintiff. True, the verdict was not for $ 5,000, but the court was not required to believe that that failure of the jury was the result of prejudice, or evidence thereof.

3. This motion was not filed for more than seven months after the second verdict. We deem it clear that the trial court did not err in overruling these motions.

II. Did the verdict of $ 99, rendered at the last trial, in view of the fact that the jurors were taxpayers, indicate that the plaintiff had not obtained a fair trial?

If the plaintiff waived his right to a change of venue by failure to make timely application therefor, his case would be necessarily tried before the taxpayers of Crawford County as jurors. The area taken was slightly less than 1.22 acres. The highest valuation per acre which the plaintiff himself and his witnesses put upon his farm was $ 80. The highest valuation put thereon by the defendant's witnesses was $ 60 per acre. At the highest valuation, the plaintiff's lands so taken would be worth $ 97.60. True, the plaintiff contended that the value of his 800-acre farm had been diminished $ 10 per acre, but the reasons appearing in the record for such a contention are very meager indeed. It is not a case where a farm has been so seriously divided that parts thereof are rendered inaccessible. On the face of the record, it would be difficult for a disinterested person to find how the alteration made could work any substantial damage, other than the appropriation of the necessary land. Surely, we cannot say, as a matter of law, that the record discloses that the plaintiff did not have a fair trial.

III. Complaint is made of certain testimony, and the refusal of the court to strike it. Appellant's abstract discloses the following direct testimony of witness Jones:

"Think the farm would be worth more money after the relocation of the road."

On cross-examination, the following is disclosed:

"I think the value of the Neddermeyers' land was improved because the new road is a better road than the old one. I think the increase in value is partly due to that. Another thing that has improved the price is that he doesn't have to cross the track at all. This is another improvement in the road. When we get down to plain language, the only reason I tell the jury that the land was worth more, if it is, than before, is because the new road is an improvement on the old road."

Based upon the foregoing cross-examination, the plaintiff moved to strike the testimony of the witness as to the value of the land since the relocation, because it was based upon the consideration of betterments made by the change. This motion was denied. Did the trial court err at this point? To strike evidence where there was no error in its original admission is not usually a matter of right to the opposing party. We assume that the motion had reference to the direct testimony of the witness, although it does not so state. If this testimony by the witness was responsive to an objectionable question, there was no error in admitting it, in the absence of objection. The printed record does not disclose the form of the question thus answered by the witness. The trial court had it before him, and we must presume that it was such as to justify his ruling.

Assuming that the answer was responsive to a question objectionable in form, plaintiff was bound to object thereto, in order to be in a position to complain. He could not mend his hold by thereafter moving to strike the...