El Paso Elec. Co. v. Milkman

• Decision Date: 15 December 1959
• Docket Number: No. 6573,6573
• Parties: EL PASO ELECTRIC CO., a Corporation, Petitioner-Appellee, v. Robert MILKMAN, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 1002

347 P.2d 1002

66 N.M. 335

EL PASO ELECTRIC CO., a Corporation, Petitioner-Appellee, v. Robert MILKMAN, Defendant-Appellant.

No. 6573.

Supreme Court of New Mexico.

Dec. 15, 1959.

J. B. Newell, Las Cruces, for appellant.

J. D. Weir, J. R. Crouch, Las Cruces, for appellee.

MOISE, Justice.

Involved in this case is the single question of whether or not under the provisions of Sec. 22-9-8, N.M.S.A.1953, a defendant in a condemnation action is entitled to appeal to the district court from the order and confirmation provided for in Sec. 22-9-6, N.M.S.A.1953, and obtain a trial de novo therein as other civil causes are tried, without first having filed exceptions to the report of commissioners filed pursuant to said Sec. 22-9-6.

The pertinent parts of the two sections in question read as follows:

22-9-6. 'Upon the filing of such report of said commissioners, the clerk of the court wherein the same is filed shall forthwith notify * * * of the filing of such report, * * *. The report of such commissioners may be reviewed by the court in which the proceedings are had on written exceptions filed in the clerk's office, by either or any party within thirty (30) days after the time of the filing of such report in the clerk's office; and the court shall make such order therein as right and justice may require, and may order a new appraisement upon good cause shown to be made, either by the commissioners already appointed or by three (3) other qualified commissioners to be appointed for that purpose. * * *.'

Sec. 22-9-8. 'Within twenty (20) days after the final confirmation of any report of such commissioners, as provided for in section 2103 (22-9-6), any person interested therein may appeal from the said order and confirmation to the district court of the proper county, by filing a notice with the clerk of said court that an appeal has been so taken, and thereupon the clerk shall docket said cause in the district court and it shall stand for trial in said court as other civil causes are tried and shall be tried de novo, and the parties, unless they shall waive the same, shall be entitled to a trial by jury as in ordinary cases. * * *.'

Plaintiff commenced its action by filing a Petition and defendant appeared by attorney at the hearing for appointment of commissioners. Commissioners were appointed and they reported in due time. When the report was filed the clerk immediately mailed copies as required by the statute. More than thirty days having elapsed the commissioners' report was confirmed. Thereupon, defendant filed notice of appeal, which after hearing was dismissed and this appeal followed.

This Court has considered these statutory provisions in the cases of State ex rel. Weltmer v. Taylor, 42 N.M. 405, 79 P.2d 937, and State ex rel. City of Albuquerque v. Johnson, 45 N.M. 480, 116 P.2d 1021. Although in the first of these cases there is dictum to the effect that [42 N.M. 405, 79 P.2d 940] 'if no exceptions are taken to the commissioners' report within thirty days after the time for filing, it becomes final and in effect a judgment enforceable by execution,' the case was one where exceptions had in fact been filed. In the later case wherein exceptions were filed after the passage of thirty days, the court refused to prohibit the trial judge from entering an order confirming the report stating that [45 N.M. 480, 116 P.2d 1023] 'a confirmation of the commissioner's report by the court is essential before a judgment can be entered and an execution issued' and that 'orderly procedure requires confirmation of the report.' In neither of these cases was the question here raised discussed.

We are given some small amount of help in a search for the answer to our problem in the case of State ex rel. Weltmer v. Taylor, supra, in the conclusion and holding that an 'appeal' provided for in the statute (Sec. 22-9-8, N.M.S.A.1953) is a 'continuation and part of the same proceeding' and the judgment for damages 'is the final judgment' in a judicial proceeding. In the opinion in this case Justice Brice explains how certain inconsistencies crept into Ch. 97, N.M.S.L.1905.

Our attention has been directed to the case of State ex rel. Root Levee Dist. of Carroll County v. Root, Kansas City Court of Appeals, Missouri 1949, 219 S.W.2d 298. That was a case in which exceptions were filed more than ten days after service of notice of the filing of the commissioners' report contrary to the requirement of the statute. The court dismissed the exceptions and confirmed the report and on appeal it was held that failure to timely file the exceptions amounted to a waiver and accordingly the condemnation became complete and the proceedings were at an end. To this effect the court cites the earlier cases of Leavenworth Terminal Ry. & Bridge Co. v. Atchison, 137 Mo. 218, 37 S.W. 913, and Rothan v. St. Louis, O. H. & C. Railroad Co., 113 Mo. 132, 20 S.W. 892. It should be noted that although the similarity in these cases to the issue here present is apparent, the facts are different.

We have also considered the Texas cases of Miers v. Housing Authority of City of Dallas, Tex.Civ.App.1954, 268 S.W.2d 796, and Pearson v. State, Tex.1958, 315 S.W.2d 935, cited by appellee, but do not believe they are of assistance because of material differences in procedure and jurisdiction as evidenced by the decisions. Likewise, other cases cited by appellee we do not consider in point.

We believe a better rule is the one adopted in the state of Tennessee in the old case of Overton County R. Co. v. Eldridge, 118 Tenn. 79, 98 S.W. 1051, and the more recent case of Pound v. Fowler, 175 Tenn. 220, 133 S.W.2d 486.

Although the statutes being interpreted in these two cases differ from ours in many respects, they provide for an assessment of damages by commissioners (there called a 'jury of inquiry'), the right to file exceptions, a right of either party to appeal and obtain a 'trial anew before a jury in the usual way.' ...