Railroad Co. v. Tod

Citation74 N.E. 172,72 Ohio St. 156
Decision Date21 March 1905
Docket Number8886
PartiesThe Pittsburgh, Cleveland & Toledo Railroad Company v. Tod.
CourtUnited States State Supreme Court of Ohio

Proceedings of railroad corporation for appropriation of property - Determination of probate judge may be reviewed on error, when - Section 6420, Revised Statutes - Motion for new trial not necessary, when - Time for filing bill of exceptions - Requirement of section 3280, Revised Statutes - Railroad corporation - Condemnation proceedings - Court procedure.

1. In proceedings for the appropriation of property by a private corporation the determination of the preliminary questions by the probate judge, as required by section 6420, Revised Statutes, may be reviewed on error.

2. A motion for a new trial, or rehearing, of such preliminary questions is not necessary.

3. The time within which a bill of exceptions on such hearing should be taken is to be computed from the day on which said questions are determined, if no motion for a new trial is filed, and if a motion for a new trial is filed from the day the motion for a new trial is overruled.

4. The time within which a petition in error must be filed in the court of common pleas is to be computed from the final judgment of the probate court either dismissing the petition or confirming the verdict of the jury.

5. If the court of common pleas reverses the judgment of the probate court for error in the determination of either of the preliminary questions it should retain the case and hear and determine such questions de novo.

6. The filing with the secretary of state of the certificate required by section 3280, Revised Statutes, is a condition precedent to the right to appropriate property for the construction of a branch railroad.

On the twenty-sixth day of June, 1903, the plaintiff in error, The Pittsburgh, Cleveland & Toledo Railroad Company, hereinafter referred to as the plaintiff, filed in the probate court of Trumbull county its petition against the defendants in error, Sarah K. Tod et al., hereinafter referred to as the defendants, to appropriate certain property therein described upon which to construct a branch railroad.

August 14, 1903, the probate judge, as required by section 6420 Revised Statutes, heard the preliminary questions and determined them for the plaintiff.

September 9, 1903, the jury returned a verdict assessing compensation and damages, and on the same day the defendants filed a motion for a new trial, setting forth as grounds therefor not only alleged errors on the trial, but also that on the preliminary hearing plaintiff had offered no evidence tending to prove its right to make the appropriation and that the probate judge had erred in finding and determining that the plaintiff had such right.

On September 10, 1903, twenty-seven days after the preliminary hearing and before the motion for a new trial had been passed upon, the defendants filed a bill of exceptions containing the evidence offered on the preliminary hearing.

September 24, 1903, the motion for a new trial was overruled and judgment entered confirming the verdict, and the defendants filed a bill of exceptions containing all of the evidence that offered on the preliminary hearing as well as that offered on the trial.

On September 26, 1903, forty-one days after the preliminary hearing, but less than thirty days after the judgment of confirmation, the defendants filed a petition in error in the court of common pleas.

The plaintiff filed two motions in the court of common pleas; one to strike the petition in error and the bill of exceptions from the files on the ground that the bill was not taken and signed according to law, and the other to strike from the petition in error so much thereof as related to the preliminary hearing.

The court of common pleas, without passing on either motion affirmed the judgment, and the defendants prosecuted error in the circuit court.

In the circuit court plaintiff filed a motion similar to its second motion in the court of common pleas.

The circuit court overruled this motion and found that the probate judge erred in determining that the plaintiff had the right to appropriate, for the reason that there was no evidence offered on the hearing before him tending to prove that the president and directors of the plaintiff had acknowledged and filed with the secretary of state a certificate as required by section 3280, and that the probate court had on this ground erred in entering a judgment of confirmation, and that the court of common pleas had erred in affirming the judgment of the probate court, and reversed and set aside the judgments and the determination of the probate judge and the verdict of the jury and remanded the cause to the probate court "for a new preliminary hearing to be proceeded in according to law and the rights of said parties thereto."

Plaintiff prosecutes error in this court.

Messrs Arrel, McVey & Tayler, for plaintiff in error, cited and commented upon the following cases:

Street Railway Co. v. Street Railway Co., 3 Circ. Dec., 493; 6 C. C. R., 362; Ibid, 50 Ohio St. 603; Ide v. Churchill, 14 Ohio St. 372; Bridge Co. v. Magruder et al., 63 Ohio St. 455; Cable Company Case, 68 Ohio St. 306; The Ohio Postal Tel. v. Railway Co., 11 Dec., 52; 8 N. P., 121; Wagner v. Railway Co., 38 Ohio St. 32; Railway v. Bailey, 39 Ohio St. 170; Railroad Co. v. Traction Co., 14 Dec., 22; Railway Co. v. Tel. Cable Co., 68 Ohio St. 306; Railway Co. v. Telegraph Cable Co., 12 Circ. Dec., 522; 22 C. C. R., 555; 3 Am. R. & C. Cases, 670; 12 Am. R. R. Cas., 475, 505, 508 and 509; Humphreys v. Mooney, 5 Col. 282; 6 Am. Corp. Cas., 292; Abbott v. Smelting & Refining Co., 4 Neb. 416; 8 Am. Corp. Cas., 305; Jones v. Aspen Hardware Co., 29 L.R.A. 143-145; Maryland Tube & Iron Works v. West End Imp. Co., 39 L.R.A. 810; Doty v. Patterson, 56 N.E. 668; 1900 A. Am. Digest, p. -; Balinger's Ann. Codes and St., secs. 4251, 4252; Spokane & I. Lumber Co. v. Loy, 21 Wash. 501; Mokelumne Hill Mining Co. v. Woodbury, 14 Cal. 424; Spring Valley Water Works v. San Francisco, 22 Cal. 440; Heald v. Owen, 44 N.W. 210; Bushnell v. Consolidated Ice Machine Co., 27 N.E. 596; Bon Aqua Improvement Co. v. Standard Fire Ins. Co., 12 S. E. Rep., 771; Chattanooga R. & C. R. Co. v. Evans, 66 F. 809; Callender v. Railway Co., 11 Ohio St. 516; secs. 254, 260, 2780-31, 3226, 3236, 3237, 3238, 3238a, 3239, 3244, 3262, 3263, 3264, 3273, 3275, 3280, 3282, 3282-2, 3282-3, 3395, 3396, 5656, 5673, 5674, 5674a, 6420, 6421, 6422, 6437 and 6707, Rev. Stat.

Mr. A. W. Jones; Mr. T. H. Gillmer and Mr. Charles Fillius, for defendant in error, cited and commented upon the following cases:

Railway Co. v. Railway, 3 Circ. Dec., 566; 6 C. C. R., 52; State ex rel. v. Judges Hamilton County, 69 Ohio St. 381; Turner v. Turner, 17 Ohio St. 450; Minnear v. Holloway, 56 Ohio St. 148; Railway Co. v. Cable Co., 68 Ohio St. 306; 50 O. L., 201-205; Toledo Consolidated Street Railway Co. v. Toledo Elec. Railway Co., 3 Circ. Dec., 493; 6 C. C. R., 362; Wilmes v. Railway Co., 29 Minn. 242; Railway Co. v. Waldo, 70 Mo. 629; Railroad Co. v. Merrill, 25 Kan. 421; Welch v. Railway Co., 27 Wis. 108; Driver v. Railroad Co., 32 Wis. 569; Poughkeepsie Railroad Co., 63 Barb., 151; Railroad Co., 31 Hun, 461; Railway Co. v. Dresel, 110 Ill. 89; Railway Co. v. Snyder, 5 Dec., 480; 5 N. P., 461; Railway Co. v. Murphy, 19 Minn. 500; Railway Co. v. Voorheis, 52 Mich. 506; Hartshorn v. Railway Co., 52 Ia. 613; Cummins v. Railroad, 63 Ia. 397; Railroad Co. v. Huncheon, 130 Ind. 529; Pierce on Railroads, 212; Randolph on Railroads, 173; secs. 3239, 3272, 3280, 6422, 6423, Rev. Stat.

SUMMERS J.

The questions presented are questions of practice in appropriation proceedings by a private corporation.

The principal contentions on the part of counsel for plaintiff are: First, Error cannot be prosecuted to review the determination of the preliminary questions by the probate judge; Second, If error lies, a motion for a new trial is necessary; Third, If a motion for a new trial is not necessary, still the petition in error must be filed within thirty days from the determination of the preliminary questions; and Fourth, The filing of the certificate mentioned in section 3280, Revised Statutes, is not a condition precedent to the right to make an appropriation.

Section 6420, Revised Statutes, provides that the probate judge shall hear and determine the questions of the existence of the corporation, its right to make the appropriation, its inability to agree with the owner, and the necessity for the appropriation, and that upon these questions the burden of proof shall be upon the corporation. Section 6421, Revised Statutes, provides that if the judge determines these questions for the corporation he shall issue an order and a venire for a jury. Section 6422, Revised Statutes, reads: "The owners of each separate parcel right, or interest, shall be entitled to a separate trial by jury, verdict, and judgment. They shall hold the affirmative on the trial, which shall be conducted, and evidence shall be admitted, and bills of exception may be taken, as provided in civil actions." Section 6437, Revised Statutes, provides that either party may file a petition in error in the court of common pleas within thirty days from the rendition of the final judgment in the probate court and that the proceedings in error shall be conducted as in civil actions, and that notwithstanding the pendency of the proceedings in error, the corporation may, on the rendition of the final judgment in the probate court, pay into that court the amount of the judgment and proceed to enter upon and appropriate the property. And section 6438, Revised Statutes, provides that if the court of common pleas reverse the...

To continue reading

Request your trial
3 cases
  • Ornstein v. Chesapeake & O. Ry. Co.
    • United States
    • Ohio Supreme Court
    • February 11, 1931
  • Pittsburgh v. Tod
    • United States
    • Ohio Supreme Court
    • March 21, 1905
    ...72 Ohio St. 15674 N.E. 172PITTSBURGH, C. & T. R. CO.v.TOD et al.Supreme Court of Ohio.March 21, Error to Circuit Court, Trumbull County. Proceeding by the Pittsburgh, Cleveland & Toledo Railroad Company against Sarah K. Tod and others to condemn land. From a judgment of the circuit court, p......
  • Ornstein v. C. & O. Ry. Co.
    • United States
    • Ohio Supreme Court
    • February 11, 1931
    ...174 N.E. 772 123 Ohio St. 260 Ornstein v. Chesapeake & Ohio Ry. Co. No. 22594Supreme Court of OhioFebruary 11, 1931 ...          Eminent ... domain - Appropriation by railroad" - Error proceedings - ... Sections 11046,11047 and 11065, General Code - Determination ... of preliminary questions, not final order, when - Due process ... and equal protection of laws - Article XIV, Amendments to U ... S. Constitution - Section 16, Article I, Ohio Constitution ...     \xC2" ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT