State v. Rousseau

• Decision Date: 04 February 1936
• Docket Number: 26276
• Parties: STATE v. ROUSSEAU et al
• Court: Indiana Supreme Court

199 N.E. 587

209 Ind. 458

STATE v. ROUSSEAU et al

No. 26276

Supreme Court of Indiana

February 4, 1936

Appeal from Allen Circuit Court; Clarence R. McNabb, Judge.

1. EMINENT DOMAIN---Proceedings---Strict Compliance With Statute Required.---Eminent domain proceedings are statutory and where the statute fixes a definite procedure it must be followed. p. 459.

2. EMINENT DOMAIN---Report of Appraisers---Modification---Power of Court.---In eminent domain proceedings, where neither party filed objections or exceptions to the appraisers' report within 10 days, the court was without power to modify the report. p. 459.

3. APPEAL---Briefs---Appellee's Failure to File---Effect.---Appellees' failure to file briefs may be considered by the Supreme Court as a confession that exceptions relied upon for reversal are well taken. p. 460.

Eminent domain proceedings by the State of Indiana in behalf of the State Highway Commission against James Rousseau and wife. From a judgment awarding damages, plaintiff appealed. Reversed.

Philip Lutz, Jr., Atty. Gen., and Herbert Patrick and James D Sturgis, Deputy Attys. Gen., for the State.

OPINION

HUGHES, Judge.

This is an action by the state of Indiana against James Rousseau and Anna Rousseau to condemn certain lands of said defendants for state highway purposes for the use and benefit of the Indiana State Highway Commission under the eminent domain statutes of Indiana.

The court found that the state was entitled to condemn the lands described in the complaint for the uses and purposes set out and appointed three appraisers to appraise the damages.

The appraisers filed their report on July 30, 1932. They found the total damages to be $ 400, benefits $ 250, and net damages sustained by the defendants to be $ 150. On August 26, 1932, the defendants filed a motion to modify the report of the appraisers and strike therefrom the assessment of benefits and to award judgment in the sum of $ 400 as damages. On September 19, 1932, the court sustained the motion to modify the appraiser's report and directed or ordered the state to pay to the clerk of the court for the use and benefit of the defendants an additional sum of $ 250 as damages, $ 150 having been paid to the clerk prior thereto.

The appellant has assigned as error the action of the court in modifying the report of the appraisers and in rendering judgment in accordance with such report of the appraisers as modified by the court.

Section 7686, Burns' 1926, section 3-1707, Burns' 1933, Baldwin 1934, § 14068, provides: 'Any party to such action aggrieved by the assessment of benefits or damages may file written exceptions thereto in the office of the clerk of such court in vacation, or in open court if in session, within ten (10) days after the filing of such report, and 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. Such judgment as to benefits or damages shall be appealable by either...