State v. Blount

• Decision Date: 21 December 1972
• Docket Number: No. 1--672A19,1--672A19
• Citation: 290 N.E.2d 480,154 Ind.App. 580
• Parties: STATE of Indiana, Appellant (Plaintiff below), v. James E. BLOUNT et al., Appellees (Defendants below).
• Court: Indiana Appellate Court

Page 480

290 N.E.2d 480

154 Ind.App. 580

STATE of Indiana, Appellant (Plaintiff below), v. James E. BLOUNT et al., Appellees (Defendants below).

No. 1--672A19.

Court of Appeals of Indiana, First District.

Dec. 21, 1972.

Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., for appellant.

Donald G. Hendrickson, Boonville, for appellees.

LYBROOK, Judge.

This appeal arises from an eminent domain proceeding. Plaintiff-appellant, State of Indiana (State) sought to condemn certain real property of the defendants-appellees, James E. and Delores J. Blount (Blount) for highway use. Peoples Trust and Savings Bank was joined because of its interest in the property.

The sole issue on appeal is whether the trial court erred in overruling the State's Motion to Dismiss or Withdraw its exceptions to the appraisers' report. State contends that this resulted in the erroneous submission of the determination of damages to a jury.

On July 9, 1969, the State filed its complaint and on August 29, 1969, the order of condemnation was entered and appraisers were duly appointed by the court. On September 15, 1969, the appraisers filed their report, fixing damages at $5,499.90. September 17, 1969, the State filed exceptions to the appraisers' award and a demand for jury trial. Blount filed no exceptions.

On December 18, 1969, attorneys for both parties attended a pre-trial conference and the court duly entered a pre-trial order which provided, inter alia:

'A. Pleadings. The case is at issue and no further pleading is required or contemplated.

'C. Contested Issues of Fact are:

1. The value of the land and improvements, if any, taken for highway purposes.

2. The amount of damages to the residue of the land other than the lands appropriated and taken.

3. The damages, if any, resulting to the defendants from the construction of the improvements in the manner proposed by the plaintiff.

'G. Trial date: This case is set for trial before a jury on September 28th, 1970, at 9:00 o'clock A.M. (local time)

'I. Pre-trial order governs: This pretrial order has been formulated after a conference with Counsel for the respective parties and unless corrections are submitted to the Court within five days from the date of receipt of copy of the order, this order will control the course of the trial and may not be amended except by consent of the parties and the Court, or by order of the Court to prevent manifest injustice. The pleadings will be deemed merged herein.' (Emphasis supplied.)

The above trial date was postponed and later reset for May 17, 1971 by Special Judge Lester Nixon, who had been appointed in the interim. On that date the defendants appeared with witnesses, ready for trial, but the State appeared only by its local counsel, who declined to either proceed with the trial or request a continuance. Blount filed a Motion for Default and the jury was discharged.

On July 22, 1971 (some 19 months after the entry of the pre-trial order) the State moved to dismiss or withdraw its exceptions. The motion was overruled and the cause was finally reset for trial by jury on December 13, 1971. On that date, trial was had and the jury awarded Blount damages in the amount of $9,000.00, together with interest.

The State contended in its brief that:

'A party may, of right, withdraw his exceptions to the report of the court-appointed appraisers. Since the landowaners filed no exceptions, they in effect, accepted that report and had no right to any greater sum should the State move to withdraw its exceptions. Such a motion is similar to a confession of judgment.'

and relied on State v. Redmon (1933), 205 Ind. 335, 186 N.E. 328 and Denny v. State (1963), 244 Ind. 5, 189 N.E.2d 820 for the proposition that if neither party files exceptions, or if all exceptions are withdrawn, the appraisers' award is conclusive.

Ordinarily a condemnation action may withdraw its exceptions to an appraisers' award, if the motion is timely made.

However, in the case at bar, the State, after agreeing to the court's pre-trial order, and after failing to appear for trial, attempted to withdraw its exceptions, insisting it could do so as a matter of right.

State further argues that since Blount filed no exceptions, he could not insist on a trial for the determination of damages.

State maintains that State v. Redmon and Denny v. State, supra, State ex rel. Agan v. Hendricks Superior Court (1968), 250 Ind. 675, 235 N.E.2d 458, Whitlock v. Public Service Company of Indiana, Inc. (1959), 239 Ind. 680, 161 N.E.2d 169, and State of Indiana v. Superior Court #2 of Tippecanoe County (Ind., 1972, unreported), stand for the proposition that the State has an absolute right to withdraw exceptions in a condemnation case.

Redmon, supra, held that the landowner's exceptions were a nullity because they were not timely filed.

In Demny, supra, each party agreed to the withdrawal of exceptions or was precluded from raising the issue because he had accpeted payment in the amount of the appraisers' award.

State v. Superior Court #2, supra, apparently did not involve a pre-trial order and is therefore not precedent for the question presented here.

In Agan, supra, the court was concerned with exceptions filed after the 10 day...