Waller v. Lee County

• Decision Date: 04 May 1920
• Citation: 187 Ky. 848
• Parties: Waller, et al. v. Lee County, et al. Johnson, et al. v. Lee County, et al.
• Court: Kentucky Court of Appeals

187 Ky. 848

Waller, et al. v. Lee County, et al.

Johnson, et al. v. Lee County, et al.

Court of Appeals of Kentucky.

Decided May 4, 1920.

Appeals from Lee Circuit Court.

J. K. ROBERTS, G. W. GOURLEY and GOURLEY & PARRISH for appellants.

SAM HURST, J. F. SUTTON and E. R. ROSE for appellees.

OPINION OF THE COURT BY JUDGE SETTLE — Reversing.

The appellees, Lee county, and Jessee Calmes, a citizen and taxpayer of Lee county, by petition instituted these separate proceedings in the Lee county court, one against the appellants, C. B. Waller and others, the other against the appellants, T. C. Johnson and others, for the purpose of acquiring by condemnation the right of way over their respective lands for slight changes in a public road and making approaches to a new steel bridge to be constructed across the middle fork of the Kentucky river, near the mouth of Lynams creek in Lee county; the land of the former lying on one side of the river and that of the latter on the opposite side thereof.

After commissioners appointed by the county court in each proceeding to ascertain and report the damages that would result to the landowners therein by reason of the taking of their lands for the purposes indicated, had filed in that court in each proceeding their report setting forth such damages, exceptions were filed to each report by the landowners thereby affected, following which a joint trial by jury was had in the county court of all issues of fact raised by the exceptions, resulting in a verdict fixing the damages to which the jury believed the landowners in each proceeding entitled, and separate judgments were entered in conformity with the verdict, from each of which an appeal was taken by the landowners to the Lee circuit court; and on the joint trial in the latter court of the issues of fact raised by the exceptions in both proceedings the jury returned a verdict fixing the damages in each case at an amount below that allowed in the county court. From the separate judgments of the circuit court entered on the last verdict the respective landowners have appealed to this court, and the appeals having been submitted and considered together, will be disposed of by the one opinion.

Of the numerous grounds filed by appellants in support of their respective motions for a new trial in the circuit court, only two are relied on in the brief of their counsel for the reversal of the judgments asked of this court. These are that the circuit court erred: (1) In requiring the issues of fact made by the exceptions filed in each proceeding to be tried together, instead of separately; (2) in ruling that the burden of proof was on the appellees and allowing their counsel the closing argument to the jury.

The first of these contentions is without merit. Where several actions are brought in the same court by the same or different plaintiffs and against the same or different defendant or defendants, and the issues of law and fact are the same in each case, the court may try them together, although a separate judgment in each case may be found necessary. Benge's Admr. v. Fouts, 163 Ky. 797; Reed v. Nickols, 166 Ky. 424; Graham's Admr. v. L. C. R. Co., 185 Ky. 370. Moreover, as we have been unable to find from the record that appellants objected to the cases being tried together, they cannot here complain that they were so tried.

Appellants' second contention must be sustained. Indeed, the question is made plain by the Civil Code, section 525 of which provides: "The party holding the affirmative of an issue must...