41 Mo. App. 499 | Mo. Ct. App. | 1890
This is a proceeding to condemn defendant’s lands in Newton county for railway purposes. Three commissioners were appointed by the circuit judge. They made their report on October 12, 1887, and an award of $277.33. Exceptions to this report embodying objections to the amount of defendant’s damages were filed, and a change of venue granted to Lawrence county from whence it was transferred to Jasper county by consent. When the case was called for trial on the exceptions the defendant demanded a jury ; whereupon the railway company offered to introduce testimony to the court without a jury to show that the award was just and reasonable and ought'not to be disturbed, which offer was refused and the company excepted. The court then granted defendant’s demand and impaneled a jury; to which action the company excepted. The issue made by the exceptions was tried by a jury and a verdict had for defendant fixing his damages at nine hundred and fifty dollars. The court thereupon rendered judgment vacating the award of the commissioners and for the amount of damages so found by the jury.
II. In our opinion the verdict of a jury on exceptions to the report, ipso facto, annuls or sets aside the award of the commissioners. The constitutional right to a jury is complete without regard to any action of the court on the report and may be enforced in the face of the approval of the report. Action on the report is, therefore, not a prerequisite to a trial by jury.
III. It may not be necessary to say what the rule would be in case of exceptions where a jury was waived but as counsel has cited us to the case of City of St. Louis v. Lanigan, 97 Mo. 175, we will state (though it is not necessary to so decide in this case) that in such case it would seem the land-owner would by the waiver elect to have the action of the commissioners tested under the rules governing the reports of commissioners, as expounded in this state and elsewhere. That is to say, if they have been properly instructed, and have not
The judgment will be affirmed.