45 Kan. 771 | Kan. | 1891
The opinion of the court was delivered by
The Chicago, Iowa & Kansas Railroad Company commenced proceedings for the condemnation of a certain strip of land owned by William S. Townsdin, for railroad purposes. Townsdin was dissatisfied with the award of the commissioners, and appealed to the' district court. Upon the final trial he recovered the sum of $194.90. Subsequently, the trial court ordered the assessment of the commissioners to be corrected in accordance with the verdict, and rendered judgment in favor of Townsdin and against the railroad company for the costs, taxed at $220.75. As the rail
The condemnation proceedings originally instituted were special only; not an action in the district court. After the appeal was taken, the proceeding was turned into an action to be heard, tried and disposed of as other actions in the district court. While the judgment did not pass the title to the land, nor to the right-of-way, it did determine the amount which the railroad company was required to pay to the owner of the land, or to the county treasurer for his use, to secure the right-of-way. The judgment for costs in such an action is rendered in the form of an ordinary personal judgment. Technically, the language of § 528 of the civil code does not embrace proceedings in condemnation, because it refers to actions “brought for the recovery of money;” but the spirit and intent of that section does apply where an appeal is taken from the award of damages. (Fuller v. Wells, 42 Kas. 551.) In such a case the trial court may require new pleadings to be filed, and damages are properly allowable for the actual value ofi the land taken by the railroad company, and for the consequential diminution in value of the land not taken.
In Seymour v. Cooper, 26 Kas. 539, the exemption statute was construed to apply to the personal services or earnings of a debtor in attachment or garnishment proceedings. The statutes do not anywhere in express terms create such an exemption, and yet an exemption was declared in such a case, because within the evident spirit and intent of the legislature. The offer of the railroad company on June 11, 1885, was $206.25, with accrued costs. The making of its subsequent offer did not waive or set aside its first offer, and therefore, as the verdict and judgment were less than the first offer, Townsdin cannot recover any costs after June 11, 1885.
The judgment of the district court will be reversed, with the direction to the court below to retax the costs in accordance with the views herein expressed.
