29 Colo. 90 | Colo. | 1901
delivered the opinion of the court.
The citizenship of the Trust Company was immaterial; neither is the amount in controversy of any moment on the subject of removal. Both appellants were indispensable parties to this proceeding. It could not proceed without the presence of both, as they were each interested in the subject matter of controversy. Their interests were not such that they could be separated. Neither was the controversy between the parties of such character that it was divisible; so that the appellee could maintain a
It is said on behalf of appellants, that because the affidavits filed in support of the application to transfer to the federal court were not controverted, that the county court should have dismissed the proceedings. Those affidavits averred that the value of the land sought to be taken and the resulting damages exceeded two thousand dollars. The petition states that the value of such lands, together with the damages which would accrue to those adjoining owned by the appellants, does not exceed the sum of two thousand dollars. The sole object of the proceeding, as measured in money, was to ascertain the damages to which appellants were entitled. To try the question of jurisdiction in limine on a controverted question of fact as to the amount of damages, would have, in effect, been a trial of the cause in advance upon its merits before the court. The express averments of the petition gave the court jurisdiction. In this instance, the only way to settle the truth of these averments which would finally determine the jurisdiction of the court, so far as the amount involved was concerned, was to await a verdict and judgment. The People v. County Court, 26 Colo. 478; Sievers v. County Court, 11 Colo. App 147.
The averments of the petition relative to jurisdic
After the petition for condemnation was filed, the court entered an order on the application of petitioner, permitting it to take possession of the proposed right of way pending the determination of the condemnation proceedings upon the deposit of seventy-five dollars. No notice of an application for an order of this character was given appellants, neither was there any averment in the petition as to the necessity of such possession. It is claimed on their behalf that the amount of the deposit was wholly insufficient. The sum subsequently adjudged as damages for the right of way in controversy has been paid into court by the appellee. The proceedings which led up to the order for possession may have been very irregular, but they were only interlocutory in character. Interlocutory orders, though erroneous, which do not prejudice the rights of the party against whom they are made, are insufficient to reverse a cause when it does not appear that such orders have any prejudicial effect upon the disposition of the case upon its merits.
Appellants filed a petition for a change of venue in which they charged that the court was prejudiced against them, on account of which they feared that they would not receive a fair and impartial trial. They appear to have based their allegation upon the fact that notwithstanding affidavits upon their part that the damages which they would sustain for the right of way would exceed the sum of two thousand dollars, the court only required a deposit of seventy-five dollars as a condition precedent to the order of possession, and that the latter order was obtained without any notice to them.
The sufficiency of the petition for condemnation is also challenged, for the reason that it fails to state facts from which it can be inferred that the parties had failed to agree upon compensation for the right of way. I.t is also claimed that the description of such right of way is not sufficiently definite. The petition states “that the petitioner has endeavored to agree with the respondents upon the compensation to be paid in respect to the property herein sought to be taken, but has been unable to acquire the right of way herein described by purchase or voluntary grant from the said respondents.” Our attention is not directed to any action on the part of appellants challenging the sufficiency of the petition in the court below, nor any motion requiring a more definite description of the right of way. This court has frequently decided that an attack upon a pleading made for the first time on appeal is not regarded with favor, and will not prevail, unless the pleading thus challenged is so radically defective that it will not support the judgment rendered. In re. Estate of Thomas, 26 Colo, 110; Insurance Co. v. Bonner, 24 Colo. 220; Brothers v. Brothers, ante p. 69.
If the statute relating to proceedings in eminent domain—1 Mills Ann. Stat. § 1716—-requires that a
An examination of the description of the right of way convinces us that it was sufficiently definite, so that any one versed in the nomenclature employed for the description of lands could locate it without any trouble. Such, in fact, is the testimony of a surveyor on this-subject.
This cause was set for hearing in term time. In apt time appellants demanded a jury. What the record may disclose with respect to the attendance of a regular panel of jurors at the term at which the cause was tried, is immaterial. The contention of counsel for appellants is, that the cause being tried at a regular term the issues should have been submitted to a jury selected from a regular panel. The record shows that a jury had been summoned for this particular case, the persons summoned for this purpose having been selected in accordance with the provisions of 1 Mills Ann. Stat. § 1722, which provides that in cases fixed for hearing in vacation, the clerk of the court shall write the names of twenty-four disinterested freeholders of the county on as many different slips of paper, each slip to contain but one name, and shall select from such names the jurors to be summoned. Prior to empaneling the jury from the persons so selected in this case, appellants filed a motion to quash the venire and
3 Mills Ann. Stat. § 2606 provides how a regular panel may be secured for the county court. Mills Ann. Stat. § 2611 provides that if jurors shall not be drawn and summoned for the county court and a jury is required, that the court shall nevertheless have the power to cause a jury to be summoned by open venire. The motion of appellants to quash the panel selected should have been sustained, and a jury selected from persons summoned in one of the ways provided for securing the attendance of jurors upon the county court. It is suggested by counsel for appellee, that as jurors in condemnation proceedings must be freeholders, the method provided in § 1722 supra must be followed in all cases. The qualification prescribed is statutory, and if jurors secured in the ordinary way do not possess these qualifications, they, of course, would not be competent, and their places would have to be filled by others selected in the manner provided for summoning talesmen in cases of this character, if talesmen in such cases are to be selected in a way different from talesmen summoned in ordinary cases. Upon this point we express no opinion, although it is suggested by counsel for appellee that under the pro
The province of a jury in condemnation proceedings is to determine the damages which shall be awarded the owner of the property taken—1 Mills Ann. Stat, § 1721. In order to properly ascertain this fact, the statute further provides what particular items shall be reported upon by the jury in its verdict —1 Mills Ann. Stat. § 1732. All other questions must be settled in limine. Sand Creek L. I. Co. v. Davis, 17 Colo. 326; Thompson v. Ditch & Reservoir Co. 25 Colo. 243; Siedler v. Seeley, 8 Colo. App. 499.
Any attempt, therefore, to present or submit to the jury any questions save those which it is required to report upon, was properly refused.
It does appear from the bill of exceptions, that “the court held that the question, whether the parties could or could not agree prior to the commencement of the suit, as to the- compensation to be paid for the proposed right of way, and the question whether the contemplated use of such right of way, was of was not a public use, were questions to be decided by the court and not the jury; and the court, on the evidence aforesaid, introduced on the trial, found and decided that the partios could not so agree, and that the contemplated use was a public use, deciding all said questions in favor of the petitioner and against the respondents.” Notwithstand
The court, at the request of the petitioner, directed the jury to view the proposed right of way. To aid the jury, guides were appointed. This was error. Proceedings in eminent domain are special, and the requirements of the statute on the subject must be strictly complied with. The law—1 Mills Ann. Stat. § 1724—provides that the jury may go upon the premises sought to be taken or damaged, in charge of a sworn bailiff. No other person is allowed to accompany the jury. The code provision—-Mills Ann. Code§ 188a—relates only to a view of mining premises by a jury.
Appellants sought to have the jury specifically answer certain interrogatories which contemplated special findings on these questions—the quantity of coal in the right of way; whether the tunnel would penetrate the coal on the land in question;' and how much coal would be taken out and removed in constructing the tunnel, which were refused. Whether a jury shall be required to return a special finding rests in the discretion of the trial court. Unless that discretion has been abused to the prejudice of the party requesting such finding, the action of the trial court in this respect will not be disturbed. There is nothin the record from which to infer that the refusal of the court to submit these questions to the jury prejudiced appellants.
Error is also assigned by counsel for appellants
Numerous other errors are assigned and argued by counsel for appellants which we do not deem it necessary'to pass upon, as they do not embrace questions which will necessarily arise on a re-trial. The judgment of the county court is reversed, and the cause remanded for further proceedings.
Reversed and Remanded.