State v. Moore, 5 Div. 695

Citation110 So.2d 635,269 Ala. 20
Decision Date12 March 1959
Docket Number5 Div. 695
PartiesSTATE of Alabama v. George MOORE.
CourtSupreme Court of Alabama

J. Sydney Cook, Jr., Special Asst. Atty. Gen., Auburn, and Ruth S. Sullivan, Opelika, for appellant.

Walker & Walker, Opelika, for appellee.

STAKELY, Justice.

This is a proceeding begun in the Probate Court of Lee County, Alabama, by the State of Alabama (appellant) to condemn for highway purposes certain property of George Moore (appellee). The amount of the award in the Probate Court to George Moore was $21,902. This amount was paid into the Probate Court and an order of condemnation was there entered. The property owner (George Moore) took an appeal to the circuit court and demanded a trial by jury in the circuit court.

As required by statute, Code 1940, Tit. 19, § 18, the State on April 22, 1957, filed with the clerk of the circuit court a supersedeas bond in the amount of $43,805 and entered into possession of the condemned property. The trial before a jury in the circuit court resulted in a verdict and judgment for George Moore for $40,750. The State filed a motion for a new trial in the circuit court. On January 17, 1958, the clerk of the court paid to George Moore the amount of the original deposit of $21,902. This was by agreement of the parties made in open court. As will be hereinafter pointed out, the appellee, therefore, claims interest on $18,848 from the time of the judgment, November 7, 1957. The motion for new trial was overruled and this appeal followed.

Tendencies of the evidence showed in part the following. At the time these proceedings were instituted, the appellee George Moore owned a 535 acre tract of land in one body on Moore's Mill Road, a paved road extending southeasterly from Auburn. This place was partly within the southeasterly limits of the City of Auburn. Buildings had been erected out to the city limits and one witness testified that the place of George Moore was suitable for subdivision for residential lots. Buildings on the place were estimated by three of the State's witnesses to be worth $20,000. A. M. Wright, a witness for the appellee, valued the home residence on the place at $15,000 and the tenant house at $8,000 and there were other valuable improvements.

On the south side of Moore's Mill Road the property of George Moore fronted at least 2,000 feet and he had a larger frontage on the north side of that road of 2,500 or 2,600 feet, making a total frontage of about 4,640 feet. It is sufficient to say that the evidence for both the appellant and the appellee showed that the place of George Moore was valuable property before the taking.

The condemnation doubly severed the property of George Moore. The State has condemned a 300 foot wide non-access highway running northeasterly through the property of George Moore. This property is designated in the petition to condemn as Parcel No. 2 of Tract 31, which contains 20.38 acres. This non-access right of way intersects the existing Moore's Mill Road at right angles. It is proposed that Moore's Mill Road will pass over the new highway by a bridge, thus necessitating the raising of Moore's Mill Road through the property of George Moore to a maximum of 20 feet. This requires the widening by condemnation of Moore's Mill Road from its present width of 80 feet to 120 feet, which is 20 feet on each side through the Moore property. These two twenty foot strips contain in the aggregate 1.21 acres and are described in the petition to condemn as Parcel No. 1 of Tract 31.

Before the condemnation 150 or 160 acres of the property of George Moore lay in one body north of and fronting on Moore's Mill Road. As shown by maps in evidence, an odd shaped 60 acre tract of this property now lies north or northwesterly of the new non-access highway, entirely separated from George Moore's other property and with a frontage on Moore's Mill Road of only 30 to 60 feet, according to the estimates of various witnesses who knew the premises. In any event, according to tendencies of the evidence, whether the frontage of this odd shaped 60 acre tract on Moore's Mill Road is 30 or 60 feet, the non-access highway ruined the value of this property for subdivision or other purposes.

I. The record shows that only a notice of appeal was given. No bond or security for costs was given. The appellee insists that the appeal should be dismissed by this court ex mero motu. It is claimed that § 23, Title 19, Code of 1940, controls. This statute reads as follows:

'After final judgment in the circuit court or court of like jurisdiction, any party may, within thirty days thereafter, upon giving bond or security for costs, as in other cases, appeal to the supreme court.'

The argument is made that the giving of bond or security for costs is jurisdictional and where no bond or security for costs was given, the appeal must be dismissed. Conceding without deciding that the aforesaid statute, § 23, Title 19, Code of 1940, is the applicable statute and that § 72, Title 7, Code of 1940, is not here applicable, we still do not agree that the appeal must be dismissed.

Upon submission of the cause in this court no motion to dismiss the appeal of the State was submitted or other objection interposed to its prosecution of the appeal without giving bond or security for costs. The appeal, however, was taken within the time allowed by law and conceding that a bond or security for costs should have been given, this was nothing more than a defect in the manner of taking the appeal. We consider that the appellee could and did waive the failure to give bond or security for costs by not interposing a motion or other objection upon submission. Walker v. Harris, 235 Ala. 384, 179 So. 213; Humphrey v. Lawson, 256 Ala. 198, 54 So.2d 439.

II. The appeal in this case is only from the ruling and judgment of the trial court of April 4, 1958, overruling the appellant's motion for a new trial. This is, of course, permissible. § 764, Title 7, Code of 1940, as amended, 1955 Cumulative Pocket Part. Where the appeal is from the ruling on a motion for new trial, the ruling on the motion for new trial is the only matter which is subject to review on the appeal and therefore only matters assigned in the motion for new trial are subject to review. Self v. Baker, 266 Ala. 572, 98 So.2d 10.

It is sought to be argued that the verdict is contrary to the great weight and preponderance of the evidence. The appellant appears to concede that there is sufficient evidence to support the jury's verdict of damages. In brief the appellant sets out a summary of appellee's witnesses as to damages as follows: $60,980, $52,780, $53,540.50, $52,775, $54,762 and $58,925. Thereupon the appellant asserts: 'However, it is the appellant's view that the evidence given by each of the witnesses for the Appellee, including the Appellee himself, is improper and based on erroneous information in that none of said witnesses had actual knowledge of the true facts of the tract of land remaining after the taking.'

W. Harvey Boggs was a witness for the State. As an engineer 'he worked on the acquisition of the right of way on the project' here involved. It is argued that because the testimony of some of the witnesses for the appellee was in contradiction of the testimony of the witness Boggs, we should hold that these witnesses were incompetent to testify, although the trial court without objection permitted them to testify. It is not entirely clear to us that there is a conflict in the evidence. What Mr. Boggs said was, 'well that is my thought, is that it is about fifteen feet' from the margin of the condemned...

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17 cases
  • McLemore v. Alabama Power Co.
    • United States
    • Alabama Supreme Court
    • April 10, 1969
    ...the circuit court, awarding compensation, from the date of the judgment to the date of affirmance by this court on appeal. State v. Moore, 269 Ala. 20, 110 So.2d 635; Southern Electric Generating Co. v. Lance, 269 Ala. 25, 110 So.2d The condemnor relies on Ex parte Lance, 267 Ala. 639, 103 ......
  • Southern Elec. Generating Co. v. Lance
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    • March 12, 1959
    ...execution should issue.' It follows that neither penalty nor interest may be awarded on appeal in condemnation cases. See State of Alabama v. Moore, Ala., 110 So.2d 635. Appellees submitted on a motion to dismiss the appeal on the ground that prior to the appeal appellant took possession of......
  • P.J. Lumber Co. v. City of Prichard
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    • September 22, 2017
    ...v. Patterson, 271 Ala. 128, 122 So.2d 386 [ (1960) ] ; McElhaney v. Singleton, 270 Ala. 162, 117 So.2d 375 [ (1960) ]; State v. Moore, 269 Ala. 20, 110 So.2d 635 [ (1959) ]. And it has been stated by this court that it would review a case only on the same theory that was presented to the tr......
  • Williams v. Alabama Power Co.
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    ...Generating Co. v. Lance, 269 Ala. 25, 110 So.2d 627 (1959); State v. LeCroy, 279 Ala. 428, 186 So.2d 142 (1966); and State v. Moore, 269 Ala. 20, 110 So.2d 635 (1959). However, the prejudgment-interest portion of a condemnation award, unlike its post-judgment counterpart, is part of the jus......
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