State v. Redmon

• Decision Date: 29 June 1933
• Docket Number: No. 25926.,25926.
• Citation: 205 Ind. 335,186 N.E. 328
• Parties: STATE v. REDMON et al.
• Court: Indiana Supreme Court

205 Ind. 335

186 N.E. 328

STATE

v.REDMON et al.

No. 25926.

Supreme Court of Indiana.

June 29, 1933.

Appeal from Warrick Circuit Court; Union W. Youngblood, Judge.

Condemnation proceedings to secure strip of land for highway by the State against Charles Redmon and Ada Redmon. From a judgment for defendants, plaintiff appeals.

Reversed and remanded, with directions.

James M. Ogden, Atty. Gen., and Connor D. Ross, Asst. Atty. Gen., for the State.

Ralph E. Roberts, of Rockport, for appellees.

TREANOR, Judge.

This is an appeal from judgment rendered upon the verdict of a jury in a condemnation proceeding. The preliminary proceeding for condemnation was filed June 11, 1929, in the Spencer circuit court. Notice was given, and upon hearing an order of condemnation was entered and appraisers were appointed and required to report on July 20, 1929. The appraisers duly filed their report awarding damages to appellee in the sum of $825. On July 24, 1929, appellant filed exceptions to the report on the grounds that the award was excessive, that the value fixed for the strip appropriated was too high, and that the appraisers failed to consider the enhancement in value and benefits which would result to appellees' other lands by reason of the construction of the highway in question and by reason of the appropriation of the strip taken. On September 3, 1929, appellees filed answer in general denial to the exceptions. On September 18th the cause was venued to the Warrick circuit court, and on October 4, 1929, appellees filed exceptions to the appraisers' report on the ground that the award was too low and that the appraisers did not properly consider all the damages which would be sustained by appellees. On December 28, 1929, the appellant moved to dismiss its exceptions to the report and moved to dismiss the exceptions filed by appellees. The trial court sustained the motion to dismiss appellant's exceptions, but overruled appellant's motion to dismiss appellees' exceptions. To the latter ruling appellant excepted. The trial court proceeded to try the cause upon the exceptions filed by appellees, and verdict was returned fixing damages in the sum of $1,400. Appellant's motion in arrest of judgment was overruled, and appellant excepted.

The sole question involved in this appeal is whether the trial court had the right to proceed with the trial and render judgment on the appellees' exceptions after appellant had dismissed its exceptions by leave of court; appellees' exceptions having been filed more than ten days after the filing of the report by the appraisers.

Appellant contends that the only jurisdiction ever had by the trial court of any appeal from the report of the appraisers on the question of damages was acquired by the filing of appellant's exceptions within ten days after the filing of said report; that upon the dismissal of appellant's exceptions the trial court ceased to have jurisdiction of an appeal from the report; that no jurisdiction of such an appeal was acquired by virtue of appellees' exceptions, for the reason that they were not filed within the statutory period of ten days after the filing of said appraisers' report.

In support of the action of the trial court, appellees contend that, “when the appellant appealed the case to the circuit court, the cause stood for further proceedings and issues on that appeal, and for trial and judgment as in civil actions, and that the court, notwithstanding appellees' exceptions, could make such further orders and render such findings as may seem just and right to the Court on said appeal”; that “when one partyin the proceedings for the condemnation of lands under the eminent domain statute files his exceptions within the time prescribed by law, in ten days, this gives to the other party the right to file its exceptions at any time while the matter is pending on appeal.”

Appellees cite Midland Ry. Co. v. Smith (1890) 125 Ind. 509, 25 N. E. 153, as authority for the foregoing propositions. The Midland Ry. Co. Case relied upon the authority and reasoning of McMahon v. Cincinnati, etc., R. Co. (1854) 5 Ind. 413, and Swinney v. Ft. Wayne, etc., R. R. Co. (1877) 59 Ind. 205.

The statute under which the proceedings in the Swinney Case were brought contained the provision, as does section 7686, Burns' Ann. Ind. St. 1926, Acts 1905, c. 48, p. 59, § 8, that the award may be reviewed by exceptions filed within ten days after the filing of such award. The provision contained in the act authorizing assessment of damages by a sheriff's jury to the effect that issues of law and fact may be made up and tried and proceedings had as in other actions (section 697, Code of Civil Procedure, 2 Rev. St. 1876, p. 285) is not unlike the language of section 7686, supra: “The cause shall further proceed to issue, trial and judgment as in civil actions; the court may make such further orders, and render such finding and judgment as may seem just.” But section 99 of the Code of Civil Procedure (2 Rev. St. 1876, p. 82), to which the court there gave effect, contained...