Lead Opinion
This сondemnation proceeding was before us on a former appeal. That appeal was by defendants and involved the amount of the award. Harris v. Board of Trustees of Green Bay Levee and Drainage District,
The record on that appeal revealed that after the district court had fixed the amount of the award and before notice of appeal was served plaintiffs moved for a supplemental order “fixing interest on any and all amounts of damage and compen
"When the matter was first presented to us, counsel for plaintiffs explained that the motion before the district court to- fix interest had not been heard or passed upon, and as they were content to have that done they were not seriously contending for their cross-appeal. We therefore said in our opinion: “Plaintiffs did nоt seriously contend for their cross-appeal relating to interest * * * and it is given no consideration herein.” (
After our decision on the first appeal plaintiffs pursued in the district court their motion and demand for interest on the award from the date they claim their land was actually appropriated. But the court denied their motion, pоinting out the language of this court’s opinion above-quoted and the fact plaintiffs had filed a petition for rehearing on the subject of interest, which petition had been denied. The trial court added: “This court is unable to read the languáge of the Supreme Court in any other way than as denying interest * *
The present appeal by plaintiffs is from thаt decision. Plaintiffs argue (1) their claimed legal right under the statute to interest on the award from the date their land was actually expropriated, and (2) a denial that any adjudication of the interest question resulted by reason of the disposition on the former appeal.
Defendants insist the question of interest was involved in the first appeаl as an integral part of the case and that to hold otherwise would permit plaintiffs to split their cause of action and have two appeals upon their one indivisible demand; that their interest claim was in legal effect denied by the district court award, was expressly urged by plaintiffs on cross-appeal and by their petition for rеhearing, and that the issue has been definitely adjudicated. We do- not interpret defendants’ brief as denying the plaintiffs’ original right to claim interest but they argue that question has been disposed of. We do not agree.
I. Chapter 455, Iowa Code, 1950 (now 1954) under which defendant levee and drainage district is organized is not primarily an eminent domain or condemnation statute. It and chapters 456 to 468 deal more especially with the organization
For the rules relating to the actual process of taking private property for public use chapter 472 of said Code is applicable “unless and except as otherwise provided by law.” Code section 472.1.
We find no provisions under the drainage chapter to indicate any rule as to interest different from that controlling in other condemnation cases.
In perhaps our most recent еase involving interest on a condemnation award we said: “Perhaps we might disregard this complaint on the ground plaintiffs’ claim to interest on the amount of the verdict seems not to have been called to the trial court’s attention. * * * Any interest which might be due should be computed from the time of taking possession [citing cases].” Hayes v. Chicagо, R. I. & P. Ry. Co.,
In that case we disallowed interest because the damages allowed by the district court were less than the sheriff’s jury award. Here the district court materially increased the amount allowed by the drainage board. In Welton v. Iowa State Highway Comm.,
It would seem from these and other cases that might be cited plaintiffs here were at least originally entitled to interest upon the award as enlarged by the district court. See Lough v. Minneapolis & St. L. R. Co.,
II. Originally the trial court, sitting as a jury, fixed the damages in excess of the appealed award. The record on former appeal shows the order of the district court fixing these damages was entered March 25, 1952. The jury function is confined to determination of damages and does not consider the matter of interest which is the duty of the court. Under all of our decisions
It is evident herе that the trial court performed the jury function and not the court’s part of the assessment. Why this oversight occurred we are not told, but from here on seldom do we find such a combination of oversights, incorrect assumptions and misinterpretations as are found herein. On April 15,1952, plaintiffs filed a motion asking the trial court to amend the order to include interest from June 5, 1951, the date they claim their land was appropriated. The same day defendants filed resistance thereto; and still this action did not appear to have sufficiently called the court’s attention to the matter to obtain performance of the court’s part in the decision. Again we are not advised as to why thе court took no action, for no further hearing was required to justify the court’s performance of its original duty.
Nevertheless, without the court’s further action, defendants on April 24 gave notice of appeal and plaintiffs filed notice of a cross-appeal on April 28.
III. Defendants contend that by such cross-appeal plaintiffs must have acquiesced in an assumption that the interest
Because the trial court misinterpreted our opinion as a denial of interest and as denying that court further jurisdiction in the matter, we conclude we should now remand the case and make abundantly clear our desire as to the disposition. The trial court should determine the date possession was acquirеd by the defendants herein, and award plaintiffs interest from that date at the legal rate of 5% per annum until paid. Section 535.3, Code of
It is true interest was a part of plaintiffs’ cause of action, but it is determined separately by the court, not the jury, and such procedure does not split the cause of action nor make it piecemeal. In Lough v. Minneapolis & St. L. R. Co., supra, now overruled, we called the jury and court functions piecemeal assessments and illegal. We now hold it error to do оtherwise. It is no doubt true that if this were in fact a “splitting” or piecemeal decision or an appeal from a part of a decision, plaintiffs could not prevail. The cases however cited us by defendant on this question are not in point. Hayes v. Chicago, M. & St. P. Ry. Co.,
As the author of the opinion in the prior proceeding,
IV. Furthermore there was no significance attachable to our refusal to permit a rehearing in the original submission. There had been no action in the interim by the district court as contemplated by our reference on the interest question and there was nothing to reconsider in that regard. It is true plaintiffs did appear to adopt a position in that rehearing petition inconsistent with the position taken in open court. However, we had intеnded
It would be unfair, unjust and, we believe,- unlawful to deprive the plaintiffs herein of both the land and the use of their money. We have condemned such results since our early cases of Daniels v. C., I. & N. R. Co.,
This cause is therefore remanded with instructions to the trial court to determine time of possession and the affixing of the legal rate of interest due plaintiffs from that date until payment is made. — Reversed and remanded.
Dissenting Opinion
(dissenting) — I cannоt conscientiously concur in the majority opinion. It comes as a surprise, even as a shock, to me to hear a majority of the court say we understood, when the other appeal was decided, that we were remanding the case for further proceedings that might result in a second appeal.
I. I have no clear recollection of just what was said by plaintiffs’ attorney in oral argument on that submission. Certainly if it did not mean plaintiffs were abandoning their claim to interest, the appeal should have been dismissed or at least the submission should have been set aside and the case remanded without opinion until a final disposition of the whole controversy was mаde in the trial court.
Whatever th-eir attorney’s exact language was, I understood
II. The theory of the majority that the result of their opinion is not to permit a splitting of the cause of action is, I think, unsound and not supported by any authority. The fact the court was performing the function of a jury in addition to ordinary court funсtions does not seem to justify an appeal before both functions have been performed. Until that happens the decision is not final and should not be considered appealable. To treat it otherwise is to permit splitting of the cause of action.
When plaintiffs cross-appealed before, they, in legal effect, assumed interest had been denied and complained of that fact. We said in the opinion that since they were not seriously pressing that question we were not giving the matter any consideration. That meant to me that they were acquiescing in the denial of interest by the trial court and abandoning the cross-appeal.
III. It can hardly be сontended that the claim for interest should not have been made and adjudicated by the trial court in connection with the award of damages. Plaintiffs knew their land had been taken and could have shown that fact as an element of recovery additional to the award of damage.
In Hayes v. Chicago, M. & St. P. Ry. Co.,
Later the same Hayes opinion says: “Notwithstanding the informal method of procedure, we cannot think that the statute contemplates that the damages in a case like this shall be assessed by piecemeal — a part by a jury, and a part by a court sitting in equity."
In that case the plaintiff was denied interest on the award because hе failed to have it included in the award and was attempting to collect it in a later procedure. The decision was based on the fact “he is seeking the adjudication of his case by piecemeal.”
This appeal illustrates the wisdom of our rule against “splitting.” I think it applies here and should be adhered to. The decision of the lower court should be affirmed.