30 Ind. 209 | Ind. | 1868
This was a proceeding to condemn lands to public use, under the ninth section of the act to incorporate the Evansville and Illinois Railroad Company (Local Laws 1849). The appellee took the case to the Circuit Court for review, as provided by that section. The petition to the Circuit Court complained only that inadequate damages had been assessed before the justice of the peace.
A jury trial, to which the appellant objected, and in whicli the appellee' was permitted to 'begin, resulted in an increased assessment of damages, and there was then entered an ordinary judgment against the appellant for the damages assessed.
A jury trial was not a matter of right. According to the act already cited, the Circuit Court proceeds, “ acting and sitting as a court of chancery.” In such cases it is very clear that trial by jury is not a constitutional right. But a court of chancery might take the opinion of a jury upon a single question of fact; and we think, therefore, that
Inasmuch as no question but the measure of damages was presented in the Circuit Court, there was no error, we think, in giving the appellee the right to begin. He had the affirmative of the question.
The court rendered a common judgment against the appellant for the damages, without any decree for a conveyance to the appellant upon the payment of the money. This was in violation of the express letter of the act already referred to, and must reverse the judgment.
The judgment is reversed, with costs, and the cause remanded, with directions to render a decree according to this opinion.
