26 Colo. 478 | Colo. | 1899
delivered the opinion of the court.
In the county court of Garfield county, George Teller instituted proceedings under the eminent domain act against these petitioners, as respondents, to condemn an easement for an irrigating ditch. There were apt averments in his petition bringing the cause within the jurisdiction of that court. Trial was had before a jury which returned a verdict which the petitioners here, respondents there, now claim ousted the county court of jurisdiction to proceed further because the value of the property sought to be condemned was placed by the jury in excess of $2,000, which, under the statute relating to the jurisdiction of county courts, was beyond the limit fixed.
A motion to set aside the verdict upon the grounds, inter alia, that it was excessive and not sustained by the evidence, was made by the petitioners and granted by the court over the protest of the respondents, who insisted that the only order competent for the court to make was one dismissing the petition for lack of jurisdiction over the subject-matter. The respondents in the county court thereupon filed in this court an application for a writ of certiorari; and upon its presentation a rule to show cause was issued, proceedings to be stayed until further order.
From the return of the county court it now appears that soon after the condemnation proceeding was begun, the respondents applied to the district court of Garfield county for a writ of certiorari to restrain the county court from further proceeding, upon the ground of a lack of jurisdiction, and that a temporary writ was issued, and that afterwards, on motion of the respondents in the district court, who were the petitioners in the county court, the temporary writ was discharged, and the application in the district court dismissed.
The court of appeals, on final hearing, held that the county court had jurisdiction in the premises, and that the application in the district court for a writ of certiorari was premature, and upon these two grounds affirmed the judgment of the district court quashing the writ. Sievers v. County Court, 11 Colo. App. 147.
If all the facts, as recited above, had been presented to us when this application was first made, it would have been denied. In Schwarz v. County Court, 14 Colo. 44, it was ruled that the person aggrieved .must await the final determination of the matter or an attempt to execute a judgment before he can apply for a writ of certiorari. The court of appeals came to a like conclusion in Sievers v. County Court, supra. This determination is unquestionably right.
From the record in this case it appears that no final judgment has been rendered by the county court in the condemnation proceeding. A ruling setting aside a verdict and granting a motion for a new trial is but an intermediate or interlocutory order, and is not at all decisive of the controversy. Lutterell et al. v. Swisher, 5 Colo. 54. Upon this ground alone this application fails.
Putting our decision upon the foregoing ground must not be interpreted as a recognition of the claim of the petitioners with respect to the verdict, either as to the correctness of the contention as a matter of fact, or its soundness as a proposition of law. D. W. & P. R. R. Co. v. Church, 7 Colo. 143, D. & R. G. Ry. Co. v. Otis et al., 7 Colo. 198, and D. C. I. & W. Co. v. Middaugh, 12 Colo. 434, are cited to the point that the moment the jury return a verdict in excess of $2,000, ipso facto the jurisdiction of the county court is
But from the doctrine of these cases it does not follow that a verdict awarding respondent a sum in excess of $2,000 might not be set aside by the county court upon the ground that it was given as the result of passion, prejudice, or some similar motive, and a new trial granted. The verdict itself is not a judicial determination of a fact. It is without virtue until judgment has been rendered upon it.
The order heretofore entered staying further proceedings of the county court should be vacated, the rule to show cause discharged, and the petition dismissed at the cost of petitioners, and the orders will be so entered.
Dismissed.