237 N.E.2d 328 | Ohio Ct. App. | 1968
The state of Ohio, Department of Natural Resources (the state), pursuant to Chapter 163, Revised Code, filed an action to appropriate certain real property located in the area of the Mohican State Park in Ashland County.
The action cancelled a public sale which had been ordered by the Probate Court. Cassie L. Sellers had died owning the land in question. The co-administrators of her estate had acted to obtain the order of public sale.
This action to appropriate was filed two days before the date of the ordered public sale.
The owners filed an answer, then proceeded in preparation for trial of the appropriation case. In such trial preparation, the owners incurred expenses of witness fees, including expert witness fees, attorney's fees, and other actual expenses.
About 6 days before trial date, the court signed an entry dismissing the appropriation action without prejudice. This left the owners high and dry without any allowance of their trial preparation expenses.
The dismissal entry was signed and filed without notice to the owners or to counsel.
The owners then filed a motion to vacate the dismissal entry in order to re-open the case so that trial preparation expenses might be allowed, under Section
The trial court then sustained the motion to vacate the dismissal entry, reinstated the case for allowance of trial preparation expenses, then allowed certain of the trial preparation expenses, and ordered the state to pay *134 them as part of the costs, after which the court dismissed the state's appropriation case at the state's costs. This appeal on questions of law by the state results.
The state assigns two errors as follows:
"I. The court erred in awarding expenses in preparation for trial to the appellee after appellant had dismissed its action pursuant to Section
"II. The court erred in assuming jurisdiction to determine the issue of appellee's fees and expenses and appellee's motion for vacation of the dismissal entry after appellant had dismissed its action pursuant to Section
The state's position is that the appropriation action was dismissed under Section
"An action may be dismissed without prejudice to a future action:
"(A) By plaintiff, before its final submission to the jury * * *." (Emphasis added.)
The owners' position is that the dismissal was pursuant to Section
"(A) The agency, if it has not taken possession of the property appropriated, may, at any time not later than ninety days after the final determination of the cause, abandon theproceedings.
"(B) In all cases of abandonment as set forth in division (A) of this section, the court shall enter judgment against the agency for costs, including jury fees, and in favor of any owner, for the following items which have been incurred, for such amounts as the court deems just;
"(1) Witness fees, including expert witness fees;
"(2) Attorney fees;
"(3) Other actual expenses." (Emphasis added.)
The determinative issue in this appeal is whether the state's voluntary, ex parte, dismissal of this condemnation of property prior to verdict constitutes an abandonment of the proceedings under Section
Section
This Chapter was enacted in 1965 as Amended Senate Bill 94 (131 Ohio Laws 179) which amended many sections of the Revised Code, including Section
"* * * In any proceedings for appropriation under this section, the procedure to be followed shall be in accordance with Sections
Also included was an amendment to Section
"* * * on January 1, 1966 and after, such authority [to appropriate] shall be exercised in the manner provided in Sections
Amended Senate Bill 94 also repealed Section
Sections
"Remedial laws and all proceedings under them shall be liberally construed in order to promote their object and assist the parties in obtaining justice. * * *"
A liberal construction of the newer remedial law, Section *136
We find no inconsistency in these two remedial laws. They are to be construed in pari materia. The term "dismissed without prejudice" as contained in Section
The state contends that there was no abandonment because as yet it had acquired no legal interest in the property sought to be appropriated. Such contention is not well taken. Section
It is urged by the state that Section
The owners urge that a liberal construction of this Section
Chapter 163 of the Revised Code (Sections
Section
"(J) The commission, if it has not occupied or changed the property appropriated, may, at any time but not later than ninety days after the final determination of the *137 cause, elect to abandon the appropriation proceedings upon the payment of the costs and reasonable attorney fees to be fixed by the court." (Emphasis added.)
The amendment of the Turnpike Commission Act deleted paragraphs (A) to (O), inclusive, of which (J) was one. It, therefore, substituted, revised and recodified the procedural steps spelled out in Section
Second, the enactment of Amended Senate Bill 94 repealed Section
Before repeal, such Section
"A corporation may abandon any case or proceeding to appropriate private property after paying into court the amount of the defendant's costs, expenses, and attorney fees, as found by the Probate Court or the Court of Common Pleas. * * *"
There is an obvious reason for this repeal. Since Section
This action creates no conflict between the two sections here discussed, just as the appropriation action of a private corporation under Section
Assuming, arguendo, that there is a conflict between the two sections, Section
Section
Under well settled rules of construction, the newer, more recent and specific provisions of Section
"A special statute covering a particular subject-matter must be read as an exception to a statute covering the same and other subjects in general terms."
In the only text upon Chapter 163 of the Revised Code, Ohio Uniform Eminent Domain Act by Hugh E. Kirkwood (1966), with reference to Section
"This section indicates the agency may apply to the court for abandonment of the proceedings after verdict. It is not clear whether the agency would have the right of abandonment prior to a verdict if the agency decided to abandon the appropriation case." (Emphasis added.)
Again assuming, arguendo, that Section
In Heck v. State,
"Where the language used in a revised statute is of such doubtful import as to call for a construction, it is both reasonable and usual to refer to the statute or statutes from which the revision has been made. * * *"
Under this well settled rule of construction we examine the case law with respect to former Section
In Jack v. Lake Erie Eastern Rd. Co. (1911), 19 C. C. (N.S.) 249, at page 251, 32 C. D. 448, the Circuit Court, alluding to the first sentence of Section 11060, General Code (later former Section
"The first sentence of this section obviously relates to a voluntary abandonment of the appropriation proceedings by the plaintiff at any state thereof either before or after judgment." (Emphasis added.)
In the case of Norfolk Western Ry. Co. v. Campbell,
The same result was reached in Jack v. Lake Erie WesternRd. Co., 19 C. C. (N.S.) 249. In the case of English v.Norfolk Western Ry. Co. (1918), 21 N. P. (N.S.) 518, 30 O. D. 230, in which case the Common Pleas Court (affirmed by Court of Appeals), speaking of the purpose *140
and requirements of what was formerly Section 11060, General Code, and later Section
"* * * The purpose is to require the public service corporation to reimburse property owners for costs and expenses incurred in the conduct of the proceeding where it is voluntarily discontinued. The requirements of Section 11060 [Section
Under the first assignment of error, we find as a matter of law that the state's voluntary ex parte dismissal of this appropriation action without prejudice constituted an abandonment of the proceedings pursuant to Section
The first assignment of error is overruled.
As to the second assignment of error, it is overruled for the same reasons.
Judgment affirmed.
RUTHERFORD and VAN NOSTRAM, JJ., concur. *141