182 Wis. 480 | Wis. | 1924
It is contended on the part of the appellants that the'title to the property was vested in the respondent as soon as the verdict of the jury was rendered, and that it may not abandon the proceedings without payment of the award, and they cite Sprague v. Northern Pac. R. Co. 122 Wis. 509, 100 N. W. 842, which was a decision under statutes identical with sub. (b), sec. 1317m — 6, Stats. While it is true that the court so held in that case, it is also true- that since that time the legislature has amended' the statutes by adding sec. 32.19, providing for abandonment of the proceedings. But it is contended by the appellants that sec. 32.19, Stats., is unconstitutional as in violation of
It appears from the record that the attorneys for appellants rendered service to the appellants in the proceedings of the reasonable value of $350, for which' appellants were liable. The circuit court, however, allowed only $100 for such services. The statute provides that if the person instituting such condemnation proceedings deems it inadvisable to take the real 'estate at ‘the price fixed by the jury, it may, within sixty days after filing the award or within sixty days after assessment of damages, discontinue the proceedings “upon such terms as to the court shall seem just.” Sec. 32.19, Stats. This statute gives to the court a large discretion, but the court nevertheless must exercise a judicial discretion and not arbitrarily deny just compensa
It was suggested on the hearing that the trial court apportioned the attorneys’ fees for the reason that the appellants, as well as the respondent, took an appeal to the circuit court. However, it was the action of the respondent that forced the applicants into the circuit court, and appellants’ appeal was a justifiable precautionary measure to protect them in any verdict that might be had in the circuit court. We do not think the respondent is justified in taking the appeal and going to trial thereon, and then seeking release from its responsibility therefor.
By the Court. — The order is reversed, with directions to the circuit court to enter an order in accordance with this opinion.