State v. Denny

• Decision Date: 25 August 1980
• Docket Number: No. 2-876A287,2-876A287
• Citation: 409 N.E.2d 652
• Court: Indiana Appellate Court
• Parties: STATE of Indiana, Appellant, v. Forest L. DENNY and Roberta Denny (H&W), Appellees.

Page 652

409 N.E.2d 652

STATE of Indiana, Appellant, v. Forest L. DENNY and Roberta Denny (H&W), Appellees.

No. 2-876A287.

Court of Appeals of Indiana, Second District.

Aug. 25, 1980.

Theodore L. Sendak, Atty. Gen., John P. Avery, Deputy Atty. Gen., Indianapolis, for appellant.

Norman E. Brennan, Indianapolis, for appellees.

SHIELDS, Judge. ¹

This cause was remanded to this court by the decision of the Supreme Court of Indiana, State v. Denny, (1980) Ind., 406 N.E.2d 240. In conformity with the instruction on remand, the opinion of this court rendered June 27, 1978 ² is ordered vacated and we readdress the sole issue raised by the State of Indiana in its appeal from the judgment entered in an eminent domain action: Whether the interest awarded the appellees, landowners, was correctly computed. We affirm.

The record shows the following sequence of events:

                Jan. 11,1960   Complaint filed
                Feb. 15,1960   Appraisers' report filed
                               (damages $19,314.00)
                Feb. 15,1960   State's expections to
                               appraisers' report filed
                Mar. 4,1960    State deposits the sum of
                               $19,314.00 with court; gains
                               right to enter upon property.
                Jan. 29,1970   Landowner posts sufficient
                               security, withdraws funds
                               on deposit.
                Oct. 16,1975   Trial commenced.
                Oct. 17,1975   Jury awards landowners damages
                               in the amount of $8,000.00.
                Oct. 18,1975   State files notice that it had
                               offered landowners damages in
                               the amount of $7,597.00.
                Oct. 18,1975-  Parties and court have informal
                April 20,1976  discussions on interest to be
                               awarded.
                April 20,1976  Court enters judgment with 4%
                               simple interest on the verdict
                               from March 4, 1960 until January
                               29, 1970 ($3,226.00).
                

The State argues that interest should be paid only on the sum of $403.00, the difference between its final offer and the jury's verdict, since at the time of judgment Section 8 of Acts of 1905, ch. 48, the Eminent Domain Act of 1905, had been amended by Acts of 1975, P.L. 301, § 1, to provide in part:

"Fourth . . . (appraisers' award deposited with court by condemnor cannot be withdrawn by landowner without posting of surety) . . . . Also, Provided, that no surety or written undertaking shall be required in order for a defendant to withdraw those amounts previously offered by the plaintiff to the defendant, providing the plaintiff has previously notified the court in writing of the amounts so offered. . . .

"Sixth. In any trial or exceptions, the court or jury shall compute and allow interest at the rate of eight per cent ³ per annum on the amount of a defendant's damages from the date plaintiff takes possession of the property; but . . . in no event shall interest be allowed on that amount of money paid by the plaintiff to the clerk of the court which is equal to the amount of damages previously offered by the plaintiff to any defendant and which amount can be withdrawn by the defendant without filing any written undertaking or surety with the court for the withdrawal of that amount."

The State contends, without citation of authority, that since the above statute was in effect at the time of judgment interest on the award must be computed as provided therein. Thus, it concludes, interest should not be paid on that amount of the verdict that represents the State's final offer to the landowners prior to initiation of the condemnation proceedings.

We need not delve too deeply into the history of the eminent domain act to decide this appeal. We might note that because this action was tried on the State's exceptions to the appraisers' award the landowners were unable to withdraw any of the deposit prior to July 6, 1961, the effective date of Acts of 1961, ch. 317, § 1, but they were entitled to interest on the verdict. Schnull v. Indianapolis Union Railway Company, (1921) 190 Ind. 572, 581, 131 N.E. 51, 53. We might also note that the aforementioned 1961 Act amended IC 1971, 32-11-1-8, to empower a property owner either to withdraw the deposit by posting surety and forfeiting his right to interest on that portion of the verdict or to not withdraw the deposit and collect interest on the entire verdict. State v. Young, (1964) 246 Ind. 52, 199 N.E.2d 694, 698. In short, under the operative law during the period for which the judgment in this case awards interest (1960-1970) the landowners either could not withdraw the deposit at all or could do so only by posting surety. No interest was awarded for any time after the effective date of the 1975 amendment.

The State contends, without citation of authority, that interest on the judgment should be allowed in conformity with IC 1971, § 32-11-1-8, as it existed on the date judgment was entered. The further contention is that since the statute now both permits a landowner to withdraw the amount of the State's final purchase order without posting surety and prohibits an award of interest on any amount that can be withdrawn without posting surety,...