Alabama & M. R. v. Mallett, 78 So. 952

Alabama & M. R. v. Mallett

78 So. 952 | Miss. | 1918

Ethridge, J.,

delivered the opinion of the court.

This is an appeal from the circuit court of George county by the Alabama & Mississippi Eailroad Company from a judgment rendered in the circuit court increasing the amount of a judgment rendered against the company in an eminent domain court. The cause proceeded properly before the eminent domain court, and resulted in a judgment against the railroad company for three hundred and thirty-five dollars for the value of the property taken and for damages resulting from such taking. After this judgment was rendered the railroad company tendered to the appellees the money adjudged against the railroad company, which money was accepted and received by- the appellees. After accepting this money the appellees took an appeal to the circuit court. When the cause came on for trial in the circuit court the railroad company moved to dismiss the appeal for the reason that the»appellees had accepted the amount of the judgment prior to their appeal and were precluded from appealing after so accepting the said money. The court refused to dismiss the appeal, and submitted the issues to a jury, who rendered ‘a judgment for four hundred and thirty-five dollars against the railroad company, thus increasing the judgment of the eminent domain court by one hundred dollars. It was held in Adams, Revenue Agent, v. Carter, 92 Miss. 579, 47 So. 409, that, where there is an appeal by plainiff from a judgment of the circuit court, or common-law court, awarding him only a part of his demand, such appeal is barred by his accepting payment of the judgment; and in the case of Kemper County v. Neville, 95 Miss. 56, 48 So. 727, it. was held that the appeal would be dismissed where after the rendition of the judgment below, enjoining the county in that case from removing gates across a highway, the county proceeded to condemn a right of way and removal of the gates under the statutes; that *39such proceeding estopped the county from appealing from the decree making the injunction permanent. In the case of Helm & N. W. R. Co. v. Turner, 89 Miss. 344, 42 So. 377, it was held in a condemnation case that, where the railroad paid the money assessed hy the eminent domain court, and proceeded to lay out its road across said lands, and after such payment appealed, the appeal would be dismissed, as the payment of the money and taking possession of the land was an acceptance of the judgment. We think in the present ease the rule is merely reversed and the owner of the property having accepted the money, is bound by such acceptance. It is contended on behalf of the appellee that the appellee was not precluded from accepting the money because of section 1871 and section 1872 of the Code of 1906 (Hemingway’s Code, sections 1509, 1510) which read as follows:

‘ ‘ Every party shall have the right to appeal to the circuit court from the finding of the jury in the special court by executing a bond with sufficient sureties, payable to his adversary, in a penalty of three hundred dollars, conditioned to pay all costs that may be adjudged against him; which bond shall be given within twenty days after the rendition of the verdict, and may be approved by the justice. If the appeal be by the defendant, it shall not operate as a supersedeas, nor shall the right of the applicant to enter in and upon the land of the defendant and to appropriate the same to public use be delayed. Upon appeals, the issues shall be tried de novo in the circuit court, which shall try and dispose of it as other issues, and enter all proper judgments.

“1872. Costs.- — The costs in all cases under this chapter shall be paid by the applicant; but in case of appeal by the owner, if the amount awarded in the circuit court do not exceed that found in the special court, the owner and his sureties shall pay the costs incident to the appeal.”

*40It will be noticed from these sections that the trial is de novo, and that the appeal by the owner does not operate as a supersedeas, and, as provided in said section, then in case the appellant does not increase the amount of the judgment awarded in the eminent domain court that the owner shall pay the costs incident of the appeal. This does not in terms, or in substance, authorize the defendant to accept the money assessed and then appeal to the circuit court. Under these statutes the circuit court is not bound in any respect by the judgment of the court below. The judgment may be diminished as well as increased, and if the owner was permitted to take the money assessed and then appeal, and in ease of increasing the judgment take that, and in case of decrease of the judgment keep what he had already taken, it would obviously result in an in justice to the condemning party, especially where the owner was insolvent. The statute recognizes the right, we think, of the owner to refuse acceptance, and in such case, if the railroad desired to proceed with the laying out of the road, the money could be paid into court, and there it would remain until the issues were finally settled. We are of the opinion that the motion to dismiss should have been sustained, and the judgment will be reversed, and the appeal dismissed.

Reversed, and appeal dismissed.