86 S.W.2d 706 | Ky. Ct. App. | 1935
Reversing.
The city of Owingsville instituted these proceedings against the appellees, Ulery and Crump, to condemn a portion of two pieces of property for street purposes. The two cases were tried together in the circuit court, and, by agreement, were heard together here. The same question is presented in each of them.
The commissioners appointed in the county court fixed the damages in each case at $65. Both the city and the appellees filed exceptions, and after a jury trial in the county court, the city appealed to the circuit court. The jury there awarded damages to appellees in the sum of $300 each. No motion for a new trial was made by the city, but before the judgments appealed from were entered it tendered an "amended petition" in each case, withdrawing its application to condemn the property and asking that the proceeding be dismissed at its cost. The lower court refused to permit the filing of the amended petition, although making it a part of the record, and entered personal judgments in favor of appellees and against the city for the amount of damages fixed by the jury.
There is no bill of exceptions, and none of the evidence is in the records. *794
It is insisted by the city that it had an absolute right to dismiss the proceeding, and a right, even after judgment, to say whether or not it desired to take the property condemned at the price fixed by the jury. Sandy Valley E. R. Co. v. Bentley,
Appellees further say that we must presume, in the absence of a bill of exceptions, that the evidence adduced at the trial supported the finding that the city had elected to take the property and that we cannot determine, in the absence of evidence, that the judgments are erroneous. Whether or not this would be true if there were anything in the pleadings to support a personal judgment against the city it is not necessary for us to decide, for a careful examination of the records before us fails to show anything upon which such a judgment could have been based. A judgment without pleading is no better than a judgment without proof, and though it be conceded that the only question on these appeals is whether or not the pleadings support the judgments (Sherril v. Harlan Theater Co., Inc.,
The appeals are granted, and the judgments reversed.
Whole court sitting.