Ortman v. Union Pac. Ry. Co.

• Decision Date: 09 October 1884
• Citation: 32 Kan. 419,4 P. 858
• Parties: WILLIAM ORTMAN v. THE UNION PACIFIC RAILWAY COMPANY
• Court: Kansas Supreme Court

4 P. 858

32 Kan. 419

WILLIAM ORTMAN v. THE UNION PACIFIC RAILWAY COMPANY

Supreme Court of Kansas

October 9, 1884

Error from Leavenworth District Court.

APPEAL by Ortman from the determination of the commissioners as to the value of a certain lot belonging to him and appropriated by The Union Pacific Railway Company for its railroad. The facts are stated in the opinion. This proceeding in error is brought by Ortman, to reverse an order made by the district court, January 11, 1884, setting aside a verdict for plaintiff for $ 1,200 damages and granting the defendant company a new trial; an order made by the court, April 28 1884, that this case, and the case of Charles Besser against the same defendant, be tried together; and also an order made on said day, that the cases aforesaid be continued to the next term.

Judgment reversed.

J. D Shafer, and L. B. & S. E. Wheat, for plaintiff in error.

J. P. Usher, and Chas. Monroe, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This was an appeal from the determination of the commissioners as to the value of a certain lot of plaintiff appropriated by the defendant for its railroad. The commissioners appraised the lot on October 16, 1883, as follows: "Owner, William Ortman; value, $ 600." On October 18, 1883, Ortman appealed to the district court. One Charles Besser, claiming to be a lessee of the lot and the owner of the improvements thereon, also appealed to the district court. On December 20, 1883, the motion of the railway company to have the case of Ortman against the railway company and the case of Charles Besser against the same company tried together and before the same jury, was heard and overruled by the court. On December 21, 1883, the case of Ortman against the company came on for trial, and a verdict was returned in his favor for $ 1,200. December 22, 1883, the railway company filed its motion to set aside the verdict and for a new trial. This motion was heard on January 3, 1884, and taken under advisement until January 11, 1884, when the verdict was set aside and a new trial granted on account of the misconduct of the jury. At the April term of the court for 1884, and on April 28th, the case of Ortman against the railway company came on again for trial. Thereupon the defendant, for the second time, applied to the court for an order that this case and the case of Charles Besser against the same company be tried together by the same jury and at the same time. Ortman objected to the application being heard or entertained, because it was made without leave and a similar one had been heard and overruled. The court overruled the objection. Thereupon the court ordered the two cases to be tried together by the same jury and at the same time, to which both Ortman and Besser excepted. The court then called the cases for trial together. Ortman announced himself ready for trial, and objected to the actions being called together for trial or tried together. Besser stated he was not ready for trial, and also objected to the actions being called together for trial or tried together. The court gave the defendant the option to proceed with the trial of both appeals together, or continue the same until the next term of court; whereupon the defendant moved the court to continue both the appeals to the next term, which was done. Ortman and Besser excepted.

It is claimed on the part of plaintiff that the order granting a new trial should be reversed, because the defendant was permitted to read the affidavit of G. L. Mead, a juror, to the effect that he, with another juror, went to the lot in controversy and examined it during the trial of the cause to enable them to fix a value upon it. It is insisted that Mead being a juror, was not a competent witness to testify to the matters in his affidavit; that even if he was a competent witness, the matters stated did not show such misconduct of the jury as justified the trial court in setting the verdict aside. These objections must be overruled. The affidavit of Mead is within the rule laid down by this court in Perry v. Bailey, 12 Kan. 539, and Gottlieb Bros. v. Jasper, 27 id. 775. The jury were sworn to well and truly try the matters submitted to them in the case and a true verdict give in accordance with the law and the evidence, that is, according to the law and the evidence given them in court. Mead and his associate, Garcelon,...