Scott v. Tubbs

• Decision Date: 06 April 1908
• Citation: 95 P. 540,43 Colo. 221
• Parties: SCOTT v. TUBBS.
• Court: Colorado Supreme Court

95 P. 540

43 Colo. 221

SCOTT v. TUBBS.

Supreme Court of Colorado

April 6, 1908

Error to Summit County Court; J. W. Swisher, Judge.

Action by Avery B. Tubbs against James K. Scott. Judgment for petitioner. Respondent brings error. Reversed.

James F. Callbreath, Jr., for plaintiff in error.

STEELE C.J.

The action was brought under the statute entitled 'Eminent Domain,' and had for its purpose the condemnation of the plaintiff in error's land to the use of the defendant in error for an irrigating canal. A jury assessed the plaintiff's damages at $40. Judgment was entered upon the verdict. The costs, amounting to $303.50, were taxed against the plaintiff in error. Several assignments of error are discussed in the brief, but we shall ignore all but one--that relating to the improper conduct of the jury. Before proceeding to a consideration of the assignment of error mentioned, we direct attention to the opinion of this court in the case Colorado Fuel & Iron Co. v. Four Mile Railway Co., 29 Colo. 90, 66 P. 902, wherein the statutes providing for the summoning of a jury in proceedings under the eminent domain act are construed. Upon the day set for the hearing at the request of petitioner, it was ordered that the jury inspect the premises sought to be condemned. After the examination of the premises, and before returning to the courtroom, four of the jurors, apart from the officer in charge of the jury, went to a saloon in company of the petitioner, defendant in error here, and at his invitation drank with him at the bar of the saloon. This was conclusively shown by the affidavits filed in support of the motion for a new trial. Two of the jurors state in their affidavit that the petitioner took them to a saloon and treated them, but that their verdict was not influenced thereby, and that they did not know they had been doing wrong. The court offered to set aside the verdict and to grant a new trial upon the payment of the costs by the respondent, but the respondent refused to take a new trial upon the terms proposed. Judgment was then entered, and the respondent appealed.

A new trial should been granted, and the petitioner should have been required to pay the costs. Such action on the part of the petitioner and the jurors cannot be tolerated, and to excuse such conduct would be to render a trial in a court of justice a farce. It may be that the petitioner and jurors were entirely innocent of any...