State v. Ferguson, 7 Div. 391

• Decision Date: 12 March 1959
• Docket Number: 7 Div. 391
• Citation: State v. Ferguson, 110 So.2d 280, 269 Ala. 44 (Ala. 1959)
• Parties: STATE of Alabama v. J. L. FERGUSON et ux.
• Court: Alabama Supreme Court

Page 280

110 So.2d 280

269 Ala. 44

STATE of Alabama v. J. L. FERGUSON et ux.

7 Div. 391.

Supreme Court of Alabama.

March 12, 1959.

John Patterson, Atty. Gen., and E. L. Roberts, Gadsden, Sp. Asst. Atty. Gen., for appellant.

Hawkins & Rhea, Gadsden, for appellees.

STAKELY, Justice.

In this case a petition for condemnation by the State of Alabama was filed in the Probate Court of Etowah County on the 18th day of August, 1956. A hearing was ordered on the petition on the 4th day of October, 1956, and an order entered on the 9th day of October, 1956, granting the application for condemnation and appointing commissioners to assess the damage and compensation to be paid to the owners of the land to be condemned. The commissioners filed their report in the probate court on October 30, 1956, and assessed the amount of damage and compensation to be paid to the landowners in the amount of $9,647.50. A final decree of condemnation was entered in the probate court on the 14th day of December, 1956. From this final decree the defendants, J. L. Ferguson and Glennis Ferguson, gave notice of appeal to the circuit court on the 15th day of December, 1956, and a supersedeas bond was filed by the petitioner to allow entry on the land pending the appeal.

The case was tried de novo in the Circuit Court of Etowah County on April 15, 1957. The right of petitioner to condemn the property was acknowledged and the only question in the case was that of just compensation for the land taken. The court and the jury were not concerned with the damages sustained to the remaining lands of the tract or any enhancement since this proceeding was for the entire property owned by the defendants, which consisted of one lot and a duplex house located in East Gadsden, Alabama. There was verdict and judgment for the defendants in the sum of $11,750.00, as just compensation for the property taken. Motion for new trial was filed by the petitioner and the same was overruled by order of the court. This appeal followed.

The motion for new trial contained only four grounds as follows:

'1. For that said verdict and judgment is contrary to the law.

'2. For that said verdict and judgment is contrary to the evidence.

'3. For that said verdict and judgment is contrary to the great preponderance of the law and the evidence.

'4. For that said judgment is contrary to the great preponderance of the evidence.'

We point out that none of the foregoing grounds assigned as the basis for a motion for new trial makes and reference to the alleged excessiveness of the verdict. We might add that in no place in the record does it appear that the question of the excessiveness of the verdict was presented to the trial court.

Our cases make it clear that the question of the excessiveness of the jury's verdict will not be considered or determined on appeal unless such question is first presented to the lower court which is usually done by motion for a new trial. The motion must specifically challenge or question the amount of the verdict as being excessive. § 811, Title 7, Code of 1940; Cook & Laurie Contracting Co. v. Bell, 177 Ala. 618, 59 So. 274; Central of Georgia R. Co. v. Chicago Varnish Co., 169 Ala. 287, 53 So. 832; Central of Georgia R. Co. v. Chambers, 197 Ala. 93, 72 So. 351.

The obvious purpose of requiring the question of the excessiveness of the verdict to be first raised in the lower court, is to provide an opportunity for the trial judge to resolve the question and an opportunity for the appellee to file a remittitur without the additional expense, inconvenience and delay of appeal and without burdening the Supreme Court with such a question raised for the first time...