Short v. State Highway Com'n

• Court: Oklahoma Supreme Court
• Writing for the Court: McNEILL, J.
• Citation: Short v. State Highway Com'n, 1 P.2d 676, 151 Okla. 85, 1931 OK 352 (Okla. 1931)
• Decision Date: 16 June 1931
• Docket Number: 20134.
• Parties: SHORT v. STATE HIGHWAY COMMISSION et al.

1 P.2d 676

151 Okla. 85, 1931 OK 352

SHORT v. STATE HIGHWAY COMMISSION et al.

No. 20134.

Supreme Court of Oklahoma

June 16, 1931

Withdrawn Corrected, and Refiled June 23, 1931.

Rehearing Denied July 28, 1931.

Syllabus by the Court.

In a condemnation proceeding, wherein the plaintiff, as landowner was the only party that filed a written demand for a jury as provided for by section 5503, C. O. S. 1921, and during the progress of said trial, before a jury, moved the court for a dismissal of her said action, with prejudice, which motion was overruled by the court, held, that such landowner had a right to file such dismissal and accept the award of the commissioners before the issue was finally submitted to a jury, upon such terms as the court might order in reference to the costs; and that it was error on the part of the trial court to overrule said motion to dismiss and to require said plaintiff to proceed to submit the question of damages for the determination of the jury.

Appeal from District Court, Logan County; Charles C. Smith, Judge.

Action by Anna L. Short against the State Highway Commission composed of Henry W. Leininger, Chairman, and others. From the judgment rendered, the plaintiff appeals.

Reversed and cause remanded with directions.

Johnson & Johnson and C. C. Cohoon, all of Oklahoma City, for plaintiff in error.

J. Berry King, Atty. Gen., and Robert D. Crowe, Asst. Atty. Gen., for defendants in error.

McNEILL J.

This action comes to this court on appeal from the district court of Logan county. The parties will be referred to as they appeared in the trial court, Anna L. Short, plaintiff in error, as plaintiff, and, for brevity, the State Highway Commission et al., defendants in error, as defendants.

The action was a condemnation proceeding for highway purposes. The defendants appropriated about 9.6 acres of plaintiff's premises for a part of Federal-Aid Project No. 129. Commissioners were regularly appointed to appraise the damages and made an award assessing the damages of plaintiff at $1,500. Within thirty days after the award of the commissioners was filed, the plaintiff filed a written demand for a trial by jury as provided for in section 5503, C. O. S. 1921. The defendants, however, did not file any written demand for a trial by jury. On the application of the plaintiff, the award was paid into court, and after certain disbursements were made to certain loan companies holding mortgages covering said premises, the balance was paid to plaintiff. Subsequently the matter came on regularly for trial before a jury in the district court of said county. During the second day of said trial, counsel for plaintiff dictated into the record plaintiff's motion to dismiss with prejudice.

The court heard and overruled said motion and required plaintiff to proceed in the trial of said cause, to all of which plaintiff duly excepted and assigns the same as error on the part of the trial court. The jury returned its verdict awarding plaintiff damages in the sum of $950, the same being $550 less than the award of the commissioners. The court thereupon rendered its judgment upon the verdict, awarding plaintiff damages in the sum of $950 and entering judgment against said plaintiff in favor of said defendants in the sum of $550.

Plaintiff sets forth twelve separate assignments of error, but as we view this record it is only necessary to consider one proposition, to wit: Did the court err in overruling plaintiff's motion to dismiss with prejudice? Counsel for defendants contend that inasmuch as plaintiff filed a request for a trial by jury there was no necessity for defendants to file their request for trial by jury; and that plaintiff could not as a matter of right dismiss her action with prejudice.

This contention is without merit. Counsel for defendants rely upon the rule announced in 20 Corpus Juris, p. 1083, which is as follows: "Where the landowner institutes proceedings for the assessment of damages he cannot discontinue after the trial has begun, or the damages have been assessed." The author of this text in support of this rule cites the single case, to wit, City of Worcester v. Lakeside Mfg Co., 174 Mass. 299, 54 N.E. 833. An examination of that case is distinguishable from the question at issue. In that case, the Lakeside Manufacturing Company petitioned the superior court for an assessment of damages for the taking of its property by the city of Worcester. About 70 similar petitions were filed, and the commissioners, appointed to view the different premises and assess their respective damages, were hearing all of said petitions at the same time, and had spent about five days in hearing evidence upon said petitions, including the petition of the Lakeside Manufacturing Company. The petitioner Lakeside Manufacturing Company sought a nonsuit or a discontinuance as a matter of right. In that case the court properly held that petitioner could not then subject the respondent, city of Worcester, to the expense and annoyance of a second suit by filing a discontinuance of the case. In that case there is cited the case of Derick v. Taylor...