Pugh v. City of Topeka

• Decision Date: 09 March 1940
• Docket Number: 34353.
• Citation: 99 P.2d 862,151 Kan. 327
• Parties: PUGH et al. v. CITY OF TOPEKA.
• Court: Kansas Supreme Court

99 P.2d 862

151 Kan. 327

PUGH et al. v. CITY OF TOPEKA.

No. 34353.

Supreme Court of Kansas

March 9, 1940

Syllabus by the Court.

Trial courts have duty to exercise judicial judgment in matter of granting a new trial, and if trial court does not approve a verdict, court must set it aside.

Where appeal from order granting new trial in action to condemn land for airport purposes was taken on ground that new trial was granted solely because of erroneous opinion of trial court on a question of law, but court stated, "there are so many things in connection with the verdict that I cannot approve," order setting verdict aside and granting new trial would not be disturbed.

The courts will encourage rather than curb relief contemplated by Declaratory Judgments Act, and within its proper and useful function will promote liberal interpretation and administration which act itself enjoins. Gen.St.1935, 60-3127 to 60-3132.

The relief contemplated by Declaratory Judgments Act does not, in absence of unusual circumstances or emergency features include its use in pending actions to secure declarations on questions of law involved and in process of determination therein, nor as a substitute for ordinary actions which afford reasonably adequate remedies. Gen. St.1935, 60-3127 to 60-3132.

1. If the presiding judge cannot approve the verdict of the jury it is his duty to set it aside.

2. The record is examined in an action to condemn real estate for public use and in which appeal from an order granting a new trial is taken on the ground that the new trial was granted solely because of an erroneous opinion held by the trial court on a question of law, but in which it appears that the court stated "there are so many things in connection with the verdict that I cannot approve," and it is held that appellants make no showing sufficient to justify this court in setting aside the order.

3. The relief contemplated by the Declaratory Judgments Act (G.S.1935, 60-3127 to 60-3132) does not--in the absence of unusual circumstances or emergency features-- include its use in pending actions to secure declarations on questions of law involved and in process of determination therein, nor as a substitute for ordinary actions which afford reasonably adequate remedies.

Appeal from District Court, Shawnee County, Division No. 2; Paul H Heinz, Judge.

Action by Burton Pugh and others against the City of Topeka which had instituted proceedings to condemn land for airport purposes, wherein the plaintiffs filed a petition for declaratory judgment. From an order granting a new trial and from a declaratory judgment, the plaintiffs appeal.

Order affirmed, and appeal from declaratory judgment dismissed.

Edward Rooney, Jacob A. Dickinson, W. Glenn Hamilton, E. R. Sloan F. A. Sloan, Eldon Sloan, and Edward Rooney, Jr., all of Topeka, for appellants.

Mark L Bennett, City Atty., and Harold E. Doherty, Asst. City Atty., both of Topeka, for appellee.

HOCH Justice.

This was an action by a municipality to condemn land for airport purposes. The matter was heard by a jury, a verdict rendered and a new trial granted upon motion of the city. From the order granting a new trial and from other orders, to which reference will later be made, the landowners appeal.

The Pughs, the appellants, were owners of a quarter section of land near the city of Topeka, Kansas. In 1929 they started operations to convert the land into an airport. For reasons which will hereafter appear, it is not necessary to recite the facts in detail. Suffice it to say that in December, 1933, appellants leased the property to the city of Topeka for a term of five years at a stated annual rental with option to purchase at a stipulated price. In December, 1937, about a year before the expiration of the lease, the city started condemnation proceedings for the purpose of acquiring the property for a municipal airport. In the meantime substantial improvements had been put upon the land by the city and by the federal government. Appraisers were regularly appointed, made their award, from which the landowners appealed to the district court. The landowners filed a motion asking the court to add to the judgment and verdict the sum of $70,000 to cover improvements expended by the city and the federal government prior to the condemnation. This motion was overruled. The city filed a motion for a new trial which was sustained, and from both orders the landowners appeal. Thereafter the landowners filed in the action a petition for a declaratory judgment on questions of law involved in the case and judgment thereon was given to which later reference will be made.

The principal matters argued relate to the proper basis of valuation of the property, to the competency of witnesses testifying to such values and to the matter of the improvements. But we are confronted at the outset with important preliminary questions.

The first question is whether, under the facts shown and under the principles heretofore laid down by this court, the order of the trial court granting a new trial should be overruled. The motion for a new trial was filed on May 26, 1938, and the motion to add the value of the improvements to the judgment was filed on May 27, 1938. On December 28, 1938, the trial court addressed a letter to the attorneys for both parties stating that he had given a great deal of consideration to the motions, together with the briefs that had been filed and the authorities that had been cited, and stated, "I have come to the conclusion that I cannot let the verdict of the jury stand for the reason that there are so many things in connection with the verdict that I cannot approve." He followed this declaration by stating that in arriving at his conclusion he had been seriously concerned with the theory upon which the matter had been submitted and he discussed the question of whether the land was to be valued as land or as an airport and the competency of certain witnesses who had testified. Appellants argue that the trial court was in error as to the law on this matter, that such alleged misunderstanding of the law was the only reason given for granting a new trial, that therefore the order granting a new trial should be set aside. The principal trouble with this contention is that while the trial court only particularized with reference to one or two matters of law, he stated "there are so many things in connection with the verdict that I cannot approve." Moreover, while the journal entry refers to the letter heretofore referred to, the finding itself was: "The court finds that the motions of the City of Topeka for a new trial and to set aside the verdict should be sustained for the reason that the court is not satisfied with said verdicts and does not approve them."

That situations might exist which would justify setting aside an order granting a new trial, we need not discuss. But certainly appellants carry a heavy burden where the trial court stated that the verdict was set aside because it did not approve it. This court has many times said that it is the duty of trial courts to exercise a judicial judgment in the matter and if it does not approve the verdict to disapprove it. Claggett v. Phillips Petroleum Co., 146 Kan 846, 847, 73 P.2d 1015; Clark v. Southwestern Greyhound Lines, 146 Kan. 115, 69 P.2d 20; Durkin v. Kansas City Public Service Co., 138 Kan. 558, 562, 27 P.2d 259...