66 Neb. 106 | Neb. | 1902
Lead Opinion
The former opinion in this case is found in 64 Nebr., 62. The opinion fully sets forth the issues involved in this controversy; hence a restatement is unnecessary. Each of the litigants seem dissatisfied with the conclusion reached on the former hearing. Plaintiffs in error file a motion asking for a modification of the judgment and a direction to the trial court to enter judgment for plaintiffs. De
. We do not think the request of plaintiffs in error for a modification of the judgment should be granted, in view of the fact that defendant’s answer to the amended petition, on which the cause proceeded to trial in the court below, did state a good defense on the theory that plaintiffs had received from the former county judge of Lancaster county their due proportion of the condemnation money deposited by defendant with that officer. While it is true that defendant did not introduce any testimony tending to support this defense, yet it was excusable for such failure in view of the fact that the trial court directed a verdict for defendant at the close of plaintiffs’ testimony.
A re-examination of the former opinion fully satisfies us with the conclusions reached. We do not think that the author of the opinion intended to question the constitutionality of section 97, chapter 16, Compiled Statutes. What he holds with reference to this section is, in substance, that any construction of this statute which would authorize the taking of private property for public use by delivering an award of damages to an officer or to a person not of the choice of the property owner would be in conflict with section 21, article 1, constitution of Nebraska; and, further, he holds that the provision of this section of the statute which permits the deposit of damages. awarded with the county judge only intends to provide for a security for the payment of the damages to the property owner, and that such deposit does not constitute a payment, and that ■ construed in this light, section 97, supra, is not in conflict with the provisions of the constitution, but that otherwise it would be. This view seems to be supported by the holdings in Redman v. R. Co., 33 N. J. Eq., 165; Martin v. Tyler, 60 N. W. Rep. [N. D.], 392; Vilhac v. Stockton & I. R. Co., 53 Cal., 208; Covington S. R. T. R. Co. v. Piel, 8 S. W. Rep. [Ky.], 449; Carrico v.
The doctrine announced in White v. Wabash, St. L. & P. R. Co., supra, has been adhered to by the supreme court of Iowa in the more recent case of Burns v. Chicago, Ft. M. & D. M. R. Co., 81 N. W. Rep., 794, 795, in which it said: “We are not inclined to open for further consideration the questions determined in White v. R. Co., 64 Ia., 281, 20 N. W. Rep., 436. It was there held that money paid to the sheriff in ad quod damnum proceedings was by way of security to the landowner, and was not payment to him, and that the latter’s Title' and right of possession can he extinguished only by the payment of the damages assessed.’ In other words, nothing short of actual payment, or its equivalent, to the owner, of the damages assessed, constitutes compensation for property wrested from him under the power of eminent domain.”
The defendant in error asks us to review the holding of the court proper in overruling its motion to quash the bill of -exceptions; but we have examined the ruling, and are satisfied that it was right and should not be disturbed.
It is therefore recommended that the former opinion in this case be adhered to.
By the Oourt: For the reasons stated in the foregoing opinion, the former opinion in this case is adhered (o.
_Former judgment adhered to.
Cobbey’s Annotated Statutes, sec. 9973.
Concurrence Opinion
concurring.
I concur in the foregoing opinion and recommendation. It seems desirable, in addition, to notice two points of practice urged by the defendant in error. One of these, which has been argued in several other cases recently, relates to the form of the transcript. The clerk does not certify directly that the motion for a new trial was filed within the time, fixed by law', nor does he certify, in so many words, when it was filed. But he certifies that the transcript contains a true copy of the motion, with all the indorsements thereon, and an indorsement appears, setting forth the date of filing, which is within the time required. This is the ordinary course of practice, and, in my opinion, it is entirely proper. Section 885 of the Code of Civil Procedure, makes it the duty of the clerk to “indorse upon every paper filed'with him, the day of filing it,” and the date is sufficiently shown by the certified copy of such indorsement. State v. Paxton, 65 Nebr., 110, 119, and cases pi ted. The other point relates to an alleged change of issues on appeal from tin; county court, where this cause originated, to the district court. The objection was not taken by motion to strike out, according to the usual practice, but by answer, instead. In support of this course counsel cite Fuller v. Schroeder, 20 Nebr., 631. But that decision, applies only to cases in which the change does not appear on the face of the record, — as, for instance, where no pleadings were had in the first instance, or, as may often happen in justice’s court, the statement-of plaintiff’s claim was informal and indefinite. In actions involving more than $200 in the county court the pleadings are usually formal, and cases in which the exact issues tried below do not appear on the face of the transcript must be very rare. The pleadings ought to be fully settled, and all questions of the sort determined before trial. Hence, in my opinion, the practice of raising such points by answer and objection at the trial should not be encouraged, and should be limited