Kansas City, Wyandotte & Northwestern Railroad v. Kennedy

49 Kan. 19 | Kan. | 1892

The opinion of the court was delivered by

Valentine, J.:

On September 18, 1888, the Kansas City, Wyandotte & Northwestern Eailroad Company instituted condemnation proceedings to procure a right-of-way through the south half of the northwest quarter of section 13, in township 2, of range 10, and, through other lands in Marshall county. Patrick Kennedy was and is the owner of said land. It appears that 3.65 acres of his land were taken for the right-of-way, for which the commissioners awarded him. $185, and in addition thereto he was awarded $35 for damages to the land not taken; total, $220. He appealed to the district court, and in that court the railroad company filed a motion to require him “to file a petition or bill of particulars setting up the items constituting his damage by reason of the condemnation of right-of-way over plaintiff’s land.” This motion was overruled by the court. A trial was then had before the court and a jury, which resulted in a verdict in favor of the plaintiff, Kennedy, and against the railroad company for $769.64, and a personal judgment in favor of Kennedy and against the railroad company for the amount of the verdict; and the railroad company, as plaintiff in error, brings the case to this court.

The brief of the plaintiff in error sets forth three grounds for reversal, but its counsel in their oral argument abandoned the-first one, and presented to this court only the second and third. The second is with regard to the aforesaid motion to require the plaintiff, Kennedy, to file a petition or bill of particulars. We think this matter rested wholly within the judicial discretion of the trial court, and we cannot say that such court abused its discretion. No affidavit or other evidence was presented in support of the motion, and nothing was presented in the case tending to show that without the petition or bill of particulars the railroad company would in any manner or degree be embarrassed in presenting any defense which it might wish to present. It did not show that the petition or bill of particulars would be of any benefit to it.

The third alleged error is, that the court below rendered an ordinary personal judgment against the railroad company for the damages assessed against it, when in fact the judgment should have been in the nature of an award of damages such as is usually rendered in condemnation proceedings, and for costs; and the case of St. L. L. & D. Rld. Co. v. Wilder, 17 Kas. 240, 247, is cited. In this respect we think the court below did commit error, and therefore its judgment must be modified so as to make it a mere award of damages, as the railroad company contends it should be. The case will therefore be remanded to the court below with the order that the judgment be modified in accordance with the views herein expressed.

All the Justices concurring.