Village of La Grange v. Smith

• Decision Date: 10 September 1956
• Citation: 146 N.E.2d 462,104 Ohio App. 19
• Parties: , 4 O.O.2d 68 VILLAGE OF LA GRANGE, Appellee, v. SMITH et al., Appellants. *
• Court: Ohio Court of Appeals

Page 19

104 Ohio App. 19

146 N.E.2d 462, 4 O.O.2d 68

VILLAGE OF LA GRANGE, Appellee, v. SMITH et al., Appellants. ^*

Court of Appeals of Ohio, Lorain County.

Sept. 10, 1956.

Syllabus by the Court

The denial, by the Court of Common Pleas, of a motion to vacate a judgment in an appropriation proceeding heard in such court is a final order which may provide the basis for an appeal to the Court of Appeals.

On motion to dismiss.

Robert J. Corts, Village Sol., Elyria, for the motion.

Alfred Steuer, Cleveland, contra.

HUNSICKER, Judge.

On April 24, 1956, there was filed with the clerk of the Common Pleas Court of Lorain County, Ohio, a journal entry awarding a judgment in an appropriation action brought by the village of LaGrange against the defendants Fred H. Smith and Dorothy A. Smith.

Thereafter, on June 11, 1956, the Smiths filed a motion to vacate the judgment so rendered. The trial court denied the motion to vacate, and an appeal was then filed in this court from the order overruling this motion to vacate the judgment of April 24, 1956.

Counsel for the village of LaGrange then filed a motion to dismiss this appeal, on the ground that the overruling of a motion to vacate a judgment is not a final order, and, further, that a motion to vacate a judgment in an appropriation action is not proper and cannot be entertained by a trial court.

It has been held by courts in this state that the overruling of a motion to vacate a judgment is a final order from which an appeal does lie. Byrkett v. Curtis, 94 Ohio App. 292, 115 N.E.2d 32; 2 Ohio Jurisprudence (2d), Appellate Review, Section 71, and authorities there cited.

Does this rule apply where the judgment is rendered in an appropriation matter?

A proceeding to appropriate property is an action in rem, and it is a special proceeding strictly regulated by statute. There is no provision in such statutes to file an answer or other pleading. The purpose of the action is to assess compensation for the taking of property. Pittsburg, C., C. & St. Louis Ry. Co. v. City of Greenville, 69 Ohio St. 487, 69 N.E. 976; Sargent v. City of Cincinnati, 110 Ohio St. 444, 144 N.E. 132; Emery v. City of Toledo, 121 Ohio St. 257, 167 N.E. 889; In re Appropriation by Ohio Turnpike Commission, 99 Ohio App. 221, 133 N.E.2d 143; Youngstown Metropolitan Housing Authority v. St. Stephen's Club, 95 Ohio App. 113, 115 N.E.2d 82.

In Emery v. City of Toledo, supra, the court said:

'1. In appropriating private property to municipal uses, the determination of the municipality of the fact and extent of the public need and the uses to which the property shall be subjected is legislative and political, and may not be questioned in the appropriation proceedings against the property owner.

'2. In such appropriation proceedings the only issue relates to the value of the property.

'3. An owner whose property is being appropriated by a municipality may, at any time before the issue of value is determined, invoke the aid of a court of equity to determine whether the use is a public one, or whether the municipality in its legislative proceedings has complied with reasonable strictness with the statutes whereby the power to appropriate is conferred, or whether the municipality is acting in good faith or abusing its power.

'4. Where such equitable issue is determined by the Court of Appeals upon evidence which is in conflict, and no motion for a new trial is filed, the evidence will not be reviewed by this court.

'Quaere: Whether property appropriated by a municipality for a specified use may be used for any purpose having no definite relation to the use declared in the municipal legislation...