State ex rel. State Highway Commission v. Peace Foundation, Inc.

• Decision Date: 08 November 1968
• Docket Number: No. 8481,8481
• Parties: STATE of New Mexico ex rel. STATE HIGHWAY COMMISSION of New Mexico, Petitioner-Appellee and Cross-Appellant, v. PEACE FOUNDATION, INC., and Wilhelmina N. Coe and Ralph M. Coe, Defendants- Appellants and Cross-Appellees.
• Court: New Mexico Supreme Court

Page 443

446 P.2d 443

79 N.M. 576

STATE of New Mexico ex rel. STATE HIGHWAY COMMISSION of New

Mexico, Petitioner-Appellee and Cross-Appellant, v. PEACE FOUNDATION, INC., and Wilhelmina N. Coe and Ralph M.

Coe, Defendants- Appellants and Cross-Appellees.

No. 8481.

Supreme Court of New Mexico.

Nov. 8, 1968.

[79 NM 576] Oliver B. Cohen, Albuquerque, for defendants-appellants and cross-appellees.

Boston E. Witt, Atty. Gen., Joseph L. Droege, Special Asst. Atty. Gen., Santa Fe, for petitioner-appellee and cross-appellant

OPINION

PER CURIAM:

The motion for rehearing is denied; the original opinion filed herein is withdrawn and the following substituted therefor:

CHAVEZ, Chief Justice.

Suit was brought in the District Court of Bernalillo County by the State Highway Commission seeking to acquire by condemnation certain parcels of land owned by defendants-appellants, Peace Foundation, Inc. and Wilhelmina N. Coe and Ralph M. Coe. The land was needed for the construction of Interstate Route 40 in Albuquerque, New Mexico. The trial court ordered separate trials for appellants, Peace Foundation, Inc. and Ralph and Wilhelmina Coe. Each trial was to a jury and resulted in verdicts for appellants.

The petition in condemnation was filed on October 16, 1963. On March 2, 1965, an order signed by another district judge was entered, reciting that the case having been set for jury trial on December 2, 1964, and appellants, Peace Foundation, Inc. and Ralph M. Coe and Wilhelmina N. Coe, by their attorney, having asked for a continuance, ordered that the interest on any award made to appellants, for their interest in the tracts condemned, cease to accrue as of December 2, 1964. The order was approved by appellee's attorney and excepted and objected to by appellants' attorney. On September 13, 1965, the respective parties stipulated in writing that the case, as to Peace Foundation, Inc. and Ralph and Wilhelmina Coe be continued.

On September 29, 1966, a jury returned a verdict in favor of Peace Foundation, Inc. in the sum of $60,210. On October 7, 1966, Peace Foundation, Inc. filed a motion seeking to set aside the order suspending interest as of December 2, 1964. The trial court denied the motion, setting out that it had inherent power to impose conditions for the granting of a continuance, and that the party who accepts the continuance thereby assents to the terms and conditions imposed, must comply therewith, and cannot thereafter attack such order. Judgment was entered on November 14, 1966, for Peace Foundation, Inc. in the sum of $60,210, but interest was excluded from December 2, 1964, until September 29, 1966, the date of the jury verdict.

On January 18, 1967, a jury rendered a verdict in the sum of $35,000 in favor of Wilhelmina N. Coe and Ralph M. Coe and judgment, excluding interest from December 2, 1964, to January 18, 1967, was entered on June 2, 1967. Also, on June 2, 1967, an order was entered denying appellants Coes' motion to set aside the court's order suspending interest as of December 2, 1964. It is from the two judgments set out above that appellants prosecuted this appeal.

The question presented is whether the trial court erred in excluding interest on the two judgments from December 2, 1964, until the dates of the respective jury verdicts.

By the enactment of Ch. 97, § 9, Laws 1905, now § 22--9--9, N.M.S.A., 1953 Comp., the legislature showed its intent that the owner of property which is condemned shall receive interest from the time his possession is invaded. That act provides that:

'* * * If an order be made letting the plaintiff into possession as provided in this chapter, the compensation and damages awarded shall draw lawful interest from the date of such order. * * *'

In A.T. & S.F. Ry. Co. v. Richter, 20 N.M. 278, 148 P. 478 (1915), this court held that the owner of land taken in condemnation...