State ex rel. Southwestern Natural Gas Co. v. Brewer

• Decision Date: 15 November 1938
• Docket Number: 27921,28007.
• Citation: 87 P.2d 954,184 Okla. 129,1938 OK 575
• Parties: STATE ex rel. v. BREWER, District Judge of Muskogee County. SOUTHWESTERN NATURAL GAS CO. SOUTHWESTERN NATURAL GAS CO. v. STERLING.
• Court: Oklahoma Supreme Court

87 P.2d 954

184 Okla. 129, 1938 OK 575

STATE ex rel. SOUTHWESTERN NATURAL GAS CO. v. BREWER, District Judge of Muskogee County.

SOUTHWESTERN NATURAL GAS CO. v. STERLING.

Nos. 27921, 28007.

Supreme Court of Oklahoma

November 15, 1938

Rehearing Denied Jan. 31, 1939.

Syllabus by the Court.

In a condemnation action, where the condemning party has entered upon the property of the landowner prior to the making of the award, Sec. 24, Art. 2 of the state constitution Okl.St.Ann.Const. art. 2, § 24, makes the payment of such award a condition precedent to the right of appeal therefrom and trial by jury, and if the condemning party refuses to pay said award the court has authority to strike his demand for trial by jury and enter judgment for the amount of the compensation awarded.

Appeal from District Court, Muskogee County; O. H. P. Brewer, Judge.

Condemnation proceeding by the Southwestern Natural Gas Company against George W. Sterling. Judgment for defendant and plaintiff appeals and on appeal the cause was consolidated with an original proceeding by the State of Oklahoma, on the relation of the Southwestern Natural Gas Company, against O. H. P Brewer, District Judge of Muskogee County, Okl., to compel the judge to sign and settle case made in the condemnation proceeding.

Judgment affirmed.

WELCH V. C.J., and OSBORN and CORN, JJ., dissenting.

N. A. Gibson, Jr., and Gibson & Holleman, all of Tulsa, for plaintiff in error.

Benjamin B. Wheeler, of Muskogee, for defendant in error.

HURST Justice.

This is an appeal by transcript from a judgment entered in a condemnation action. Another phase of this controversy has been considered by this court in Southwestern Natural Gas Co. v. Vernor, District Judge, 1936, 178 Okl. 344, 62 P.2d 1262, wherein prohibition and mandamus were denied. The facts presented here are as follows:

On September 11, 1930, the Southwestern Natural Gas Company filed its petition for appointment of condemnation commissioners, thus commencing proceedings to condemn a right of way across the land of defendant Sterling for the purpose of laying a gas pipe line and telephone line. The parties in their briefs are not in accord as to whether plaintiff entered upon the premises of defendant before or after commencing the proceedings, and the record on this point is not altogether clear. However that may be, it is undisputed that the entry was made prior to the date of the award of the condemnation commissioners. The defendant filed an answer and cross petition in the condemnation proceedings, but on January 23, 1935, the court ordered this pleading stricken from the files and appointed commissioners to assess the damages. The report of the commissioners was returned on February 19, 1935, awarding defendant the sum of $2,000. Thereupon, plaintiff, feeling aggrieved, filed a demand in writing for a trial by jury. Plaintiff did not pay the sum awarded by the commissioners and subsequently, on April 13, 1935, upon motion of defendant, the court entered its "order and judgment" finding that "the defendant is entitled to the immediate payment of $2,000.00 from the plaintiff," and rendered judgment accordingly. As plaintiff still failed to pay said sum, the defendant filed a motion to strike plaintiff's demand for a jury trial and asked the court to again render judgment for the amount of the award with interest "because of plaintiff's failure to comply with the order of this court, dated April 13, 1935." Thereupon, on January 15, 1937, the court entered an order finding that plaintiff was in contempt of court and that plaintiff's demand for a trial by jury should be stricken, and again rendered judgment in favor of defendant as prayed for.

The plaintiff did not pay said sum, but attempted to appeal to this court by case-made, and the trial court refused to sign and settle the case-made until plaintiff made payment. Thereupon, plaintiff brought an original action in this court, styled State ex rel. Southwestern Natural Gas Co. v. O. H. P. Brewer, District Judge, No. 27,921, by which it sought to compel the judge to sign and settle the case-made. That matter, however, has not been passed upon by this court, and the Southwestern Natural Gas Company has brought this appeal by transcript and has attached as an exhibit the purported case-made which the trial court had refused to sign and settle. The proceeding against the district judge, case No. 27,921, has apparently been consolidated with this appeal, but the parties make no reference to it in their briefs, and since the gravamen of both actions is the right of plaintiff to a trial by jury irrespective of the payment of the award of the commissioners, our views on the questions of law urged in this appeal will dispose of both matters.

Plaintiff takes the position that the constitution guarantees to any party feeling aggrieved at the award of the condemnation commissioners the absolute right of appeal and trial by jury in a court of record, and that this right cannot be denied because of the failure to pay the award of the commissioners. It is argued that it is true that the reason stated for such action by the trial court was that plaintiff was in contempt for failing to comply with its order, but that if it was in contempt it was an indirect contempt and the company was adjudged guilty without an accusation, hearing or trial by jury, and furthermore, the court had no power to punish for contempt by denying the company its constitutional right to a trial by jury.

Although it is recited in the journal entry of judgment that plaintiff was guilty of contempt, we do not think that the authority of the court to deny plaintiff the right to appeal from the award of the commissioners and secure a jury trial need be predicated on the power of a court to punish for an indirect contempt. Rather the authority is found in the construction of the constitutional provision itself, and under the view we take of the matter it becomes unnecessary to pass upon the question of the sufficiency of the proceedings as an action for contempt or the power of the court to punish for contempt.

Sec 24, Art. 2 of the state constitution, ...