Peeler v. Duval County

• Decision Date: 03 July 1953
• Citation: 66 So.2d 247
• Court: Florida Supreme Court
• Parties: PEELER v. DUVAL COUNTY et al.

Page 247

66 So.2d 247

PEELER v. DUVAL COUNTY et al.

Supreme Court of Florida, Special Division A.

July 3, 1953.

Fred B. Nobel, Jacksonville, for appellant.

R. R. Brown and Harvey Mabry, Jacksonville, for appellees.

MATHEWS, Justice.

This appeal results from an eminent domain proceeding in the Circuit Court of Duval County, Florida.

This proceeding originally described the property as two parcels, each of which was a part of Westbury Subdivision of Block 2, East Jacksonville, according to plat recorded in Plat Book A. K., page 82, of the Public Records of Duval County. During the course of settling the pleadings, another piece of property was added. The ownership and title to one parcel was not in dispute, but a dispute arose between some of the defendants as to the ownership of the remaining portions of the property. The dispute as to the remaining portions was between C. B. Peeler, on the one hand, and defendants, Cheesborough and others, on the other hand. There was also some claim that C. B. Peeler owned a mortgage upon a portion of the land.

After these disputes as to title and as to a mortgage on a small portion arose, C. B. Peeler made a motion for severance, whereby he asked for a separate trial from other defendants in assessing the damages to the property where there was no question of title and the other piece of property where the title was in dispute. C. B. Peeler also moved for a continuance of the trial of the cause until the questions of title and ownership could be decided. The Court denied each of said motions.

Just before the trial of the cause C. B. Peeler insisted that title to and ownership of the property should be determined by the same jury and in the same proceeding wherein the compensation to be paid for the property was determined.

C. B. Peeler then moved the Court to swear the jury in accordance with the following form of verdict:

'You do solemnly swear that you will well and truly try and decide the issues between Petitioners and Defendants, severally, as to what compensation shall be made to the Defendants, severally, and include a reasonable attorney fee for the property sought to be appropriated, irrespective of any benefit from any improvements proposed by Petitioners, and a true verdict give according to the evidence, So Help Me God.'

Then the following proceedings were had:

'The Court: The Motion is denied and the Clerk is instructed to give the customary oath in condemnation cases to the jury. Which oath was in words and figures as follows, to-wit:

"You do solemnly swear that you will well and truly try and decide the issue between Duval County, a political subdivision of the State of Florida, and Florida State Improvement Commission, a State Agency, Petitioner, and Ruby Cheeseborough & Bertha Robinson, et al., defendants, as to what compensation shall be made to the defendant for the property sought to be appropriated, irrespective of any benefit or any improvement proposed by the petitioner, and a true verdict give, according to the evidence; so Help You God.'

'The Court: Gentlemen of the Jury, the attorneys for the respective parties and the Court, wishes to advise you, before the presentation of testimony in this case, that the sole issue to be determined by you Gentlemen of the Jury and the sole issues to be presented by the attorneys for the respective parties, is the value of compensation to be paid upon property as brought into this suit in a Complaint as filed by Duval County and the State Improvement Commission. There are other questions contained in the pleadings filed of record in this case. However, those matters are to be adjudicated at a different time and is not to be considered by the Jury at this time. Therefore, I ask the attorneys for the respective parties to confine your testimony, or your evidence, solely to the value of the land sought to be taken by the Petitioners in this Complaint, and you, Gentlemen are solely concerned with the value of this land, plus a reasonable attorneys fee to be awarded attorneys for the Defendants.'

The oath which was administered to the jury must be taken in connection with the instructions of the Court as to what the issues were. The Court not only instructed the jury in accordance with the quotation hereinabove set forth, as to the issues, including an attorney's fee, but also in response to a question asked by the attorney for Mr. Peeler, 'Will you instruct the jury?', stated:

'The Court: The jury will be given an explanation of the issues in this case of the value of the property and of the damages may be given, along with the value fo the property, so to speak, plus attorney fees, and other questions not to be presented to this jury. All right, let's proceed.'

The transcript of the record brought to this Court by C. B. Peeler is only a partial transcript and does not contain the full instructions of the Court to the jury. Neither does the transcript contain any assignment of error based upon any instruction to the jury in the general charge which was omitted from the transcript. Therefore, for the purpose of this appeal it is conclusive that the Court did what it said it would do and gave to the jury an explanation of the issues in the case, of the value of the property and of the damages to be given 'along with the value of the property * * * plus attorney fees and other instructions.'

As shown by the record the jury found attorney's fees for the defendants to be $700 'for those who are hereinafter found to be the owners of the said property and entitled to compensation therefor.' There is no complaint about the amount of the attorney's fees. The only complaint with...