State v. Smith

• Decision Date: 03 July 1973
• Docket Number: No. 571S148,571S148
• Citation: 297 N.E.2d 809,260 Ind. 555
• Parties: STATE of Indiana, Appellant, v. Charles SMITH et al., Appellees.
• Court: Indiana Supreme Court

Page 809

297 N.E.2d 809

260 Ind. 555

STATE of Indiana, Appellant, v. Charles SMITH et al., Appellees.

No. 571S148.

Supreme Court of Indiana.

July 3, 1973.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Deputy Atty. Gen., for appellant.

Brunner, Brown & Brunner, Shelbyville, for appellee.

ARTERBURN, Chief Justice.

This appeal, filed May 28, 1971, from a highway condemnation award comes directly to this Court by virtue of IC 1971, 32--11--1--8 (Burns' Ind.Stat.Ann. § 3--1707 (1968 Repl.)) since present Appellate Rule 4, abrogating statutes providing for direct appeal to the Supreme Court of Indiana, had not yet become effective at the time of the perfection of this appeal.

The case began in April of 1959, when the state filed an action in Shelby Circuit Court for condemnation of Defendants-Appellees' land. The defendants filed objections, and a hearing was held on July 16, 1959, the Court finding that the state had the right to exercise the power of eminent domain. The Court appointed three disinterested freeholders to appraise the land and the appraisers were instructed after being sworn. On August 1, 1959, the appraisers filed their report. The defendants and the state filed exceptions to that report. Defendants then dismissed their exceptions to the appraisers' report, and the Court granted a petition for an order directing the Clerk to pay the appraisement award to defendants. Defendants withdrew the amount of the award on September 16, 1959.

More than a year later, the Court-appointed appraisers petitioned the Court to withdraw their report for the reason that the report had been based upon belief and information that the state would provide a service or frontage road by which the defendants would have a means of ingress and egress to that portion of their land cut off by the construction of the highway, but such an access road had not in fact been built.

For reasons not disclosed by the record, the case lay dormant at this point until nine years later, 1969, by which time two of the original appraisers had died. The Court then appointed two new appraisers to join with the one living original appraiser in a re-appraisal. On December 17, 1969, the Court instructed this new group of three appraisers. These appraisers filed their re-appraisement on January 3, 1970. On March 18, 1970, the state filed a 'Motion to Strike From the File, Report of the Appraisers and to Discharge Appraisers.' On November 30, 1970, the Court overruled this motion. On December 3, 1970, defendants filed a motion for summary judgment, Trial Rule 56(B), (C). On December 17, 1970, the Court granted this motion and issued a decree allowing the defendants the increased compensation found to be owing the defendants by the re-appraisal. On January 20, 1971, the state filed a motion to set aside the summary judgment, and Judge Ellison transferred the hearing on said motion to his predecessor, Judge Barger, who had presided at all previous hearings in this case. The state objected to this transfer. Judge Barger overruled the state's Motion to Set Aside the Summary Judgment, and the state perfected this appeal.

Since we affirm the judgment and procedure of the trial court, we will discuss Appellant's contentions in the inverse order of their importance.

(1) Appellant alleges that it was error for the Court to accept the second appraisers' report because said report was prepared on stationery supplied by the defendants' attorneys. Appellant does not claim that the award was excessive nor does he offer any proof nor does he cite a case; appellant does not even offer a chain of suppositions to bolster the innuendo that the appraisers were not 'disinterested' as required by IC 1971, 32--11--1--4 (Burns' Ind.Stat.Ann. § 3--1704 (1968 Repl.)). It has been held that even if opposing counsel prepare the report, partiality or misconduct has not been conclusively proved. Potter v. City of Putnam (1901), 74 Conn. 189, 50 A. 395.

(2) Appellant asserts that the trial court, by Judge Ellison, erred in transferring the hearing on the appellant's motion to set aside the summary judgment to Judge Barger, at the time a private attorney. The Appellant again cites no cases in support of its position. Said position in essence is a bare assertion that Trial Rule 63 does not pertain to motions and orders and decrees granting motions for a summary judgment. The words of the rule are plain.

The judge who presides at the trial of a cause or a hearing at which evidence is received shall, if available, hear motions and make all decisions and rulings required to be made by the court relating to the evidence and the conduct of the trial or hearing after the trial or hearing is concluded . . .

A summary judgment hearing is without doubt part of a 'trial of a cause.' The principle behind Trial Rule 63 is obviously that a judge who has directed a trial is, if available, the best person to rule on post-trial motions. The former Supreme Court Rules I--8 and I--9 also adopted this principle, State ex rel. Hodshire v. Bingham, Judge (1941), 218 Ind. 490, 33 N.E.2d 771. The theory underlying the Rule is that the trial judge has continuing jurisdiction as if he had been appointed special judge, cf. State of Indiana ex rel. William E. Harp v. Vanderburgh Circuit Court (1949), 227 Ind. 353, 85 N.E.2d 254.

(3) Appellant further alleges that 'the Court erred in overruling State's Motion to Strike from the files Report of Appraisers and to discharge Appraisers, where the Court had failed to instruct such second appraisers in writing and require them to file an oath as provided by statute and where report was not filed within time twice set by statute.'

(a) In point of fact, the applicable statutory provision IC 1971, 32--11--1--6 (Burns' Ind.Stat.Ann. § 3--1706 (1968 Repl.)) does not require that the appraisers be instructed 'in writing.' It is true that the record does not reveal that the second group of appraisers took an oath, pursuant to IC 1971, 32--11--1--6 (Burns' Ind.Stat.Ann. § 3--1706 (1968 Repl.)); however, the 'report' of these appraisers recites that both on the day of their appointment, December 13, 1969, and on the day of their 'view' of the real estate, December 17, 1969, they were 'duly sworn' by the 'Court.' Since Appellant made no timely objection to the claimed oversight in oathtaking and makes no attempt to indicate in what way it was harmed by this technical defect, we find no merit to Appellant's contention.

(b) Appellant's contention that the appraisers' report was not filed within the ten (10) days specified by the statute, IC 1971, 32--11--1--9 (Burns' Ind.St.Ann. § 3--1707a (1968 Repl.)) is countered by Appellees who assert that said provision was a 1961 amendment to the Eminent Domain Act of 1905 and is therefore, inapplicable to a proceeding begun in 1959 under the well-established rule that absent a contrary legislative intent statutes should be given prospective effect only. State ex rel. Uzelac v. Lake Criminal Court (1965), 247 Ind. 87, 212 N.E.2d 21; City of...