State v. Waite

• Decision Date: 26 April 1904
• Docket Number: 8690
• Parties: The State Of Ohio Ex Rel. Keller Et Al. v. Waite, Probate Judge.
• Court: Ohio Supreme Court

71 N.E. 286

70 Ohio St. 149

The State Of Ohio Ex Rel. Keller Et Al. v. Waite, Probate Judge.

No. 8690

Supreme Court of Ohio

April 26, 1904

Appropriation of property for railroad purposes - Assessment for compensation in probate court proceedings - Railroad may prosecute error in common pleas court - Section 6437, Revised Statutes - Undertaking - Mandamus of railroad to deposit compensation - Will not lie, when - Court proceedings in condemnation.

Where a railroad company institutes and prosecutes in the probate court, a proceeding for the appropriation of property for railroad purposes, and the court approves and confirms the verdict of the jury, assessing compensation to the landowner the railroad company, under section 6437, Revised Statutes may prosecute error in the court of common pleas from the judgment of the probate court, within thirty days thereafter, to obtain its reversal, and not having taken possession of the premises appropriated, the company may stay the execution of the judgment so sought to be reversed until the case on error is determined, by giving an undertaking according to law; and while the proceedings in error are pending, accompanied by such undertaking, mandamus will not lie requiring the probate judge to order the railroad company to deposit the amount of the verdict or pay the same to the landowners.

Mr James M. Brown; Mr. W. F. Brown and Mr. Frank G. Crane, for plaintiffs in error, cited and commented upon the following authorities:

Article 1, sec. 19, Constitution; State v. Railroad Co., 17 Ohio St 103; Burlington v. Railroad, 15 Neb. 367; secs. 6414, 6432, 6433, 6434, 6435, 6437, 6718, 6725, Rev. Stat.

Mr. Clarence Brown and Mr. Charles A. Schmettau, for defendant in error, cited and commented upon the following authorities:

Pancoast v. Ruffin, 1 Ohio 381; Medical College v. Zeigler, 17 Ohio St. 52; Meily v. Zurmehly, 23 Ohio St. 627; Railway Co. v. Railway Co., 3 Circ. Dec., 566; 6 C. C. R., 521; Railway Co. v. Electric St. Ry. Co., 3 Circ. Dec., 493; 6 C. C. R., 362 (affirmed, 50 Ohio St. 603); Railway Co. v. Barcalow, 2 Circ. Dec., 413; 4 C. C. R., 49; secs. 6414, 6434, 6437, 6438, 6718, 6725, Rev. Stat.

The facts are stated in the opinion.

PRICE J. The plaintiff in error commenced an action in mandamus, against the defendant in error, in the circuit court, alleging in substance, that the relators, on and prior to the eighteenth day of June, 1903, were the owners in fee simple of a certain lot in Sprague addition to Toledo, together with the buildings and appurtenances thereto belonging, and that on that day the Toledo, St. Louis & Western Railroad Co., a corporation having its line of railway in that city, filed its petition in the probate court of Lucas county, the object and prayer of which was to appropriate for railroad purposes, the lot of relators. Summons was issued and served upon them; that the preliminary hearing, provided for by the statute in such cases, was had, and it was found and determined by the court that the right to appropriate the premises existed; that there was a necessity therefor, and that the parties had been unable to agree upon a price to be paid. Thereupon a jury was duly ordered by the court, to assess compensation for the premises appropriated. A jury was drawn, summoned and impaneled for that purpose, which, on the thirteenth day of August, after due deliberation, returned into court a verdict for $8,411. Each party filed a motion for new trial. These motions for new trial were overruled, and upon the twenty-fifth day of August, 1903, the probate court entered an order approving and confirming the verdict.

Thereafter, on the twenty-first day of September, 1903, the railroad company filed its petition in error in the court of common pleas, for the purpose of obtaining a reversal of the order and judgment of the probate court, and to procure a stay of further proceedings in the probate court, caused to be filed a bond for such stay in double the amount of the judg- ment, under the provisions of section 6718, Revised Statutes.

It is further alleged, that ever since the entry of the judgment confirming the verdict, the railroad company has failed and neglected and still fails and neglects to pay the relators the amount of the verdict, or deposit the same with the probate judge.

After the expiration of thirty days from the judgment of confirmation, and within ten days thereafter, the relators filed their motion in the probate court, asking that it order the railroad company to pay or deposit the amount of the verdict, and costs, as required by law. Of this motion the company had due notice, and it brought to the knowledge of the probate judge that the error proceedings were then pending in the court of common pleas and stay bond given, and on the thirtieth day of September, 1903, the motion was overruled, and the court refused to make or enter the order prayed for, to which relators excepted. The relators insist that it was the plain and mandatory duty of the probate judge, upon hearing said motion, to have granted the same and that by reason of the failure of the court to enter the order desired, they suffer and will continue to suffer irreparable injury, for which they have no adequate remedy at law; that they cannot sell or exchange their property so appropriated, and that the refusal of the court casts a cloud and unjust burden upon their premises. It is alleged that defendant in error, Richard Waite, now is, and on all dates mentioned herein, was the duly elected and qualified probate judge of Lucas county, before whom all of said proceedings...