Summary
In Rauch, a highway-appropriation action under former R.C. Chapter 5519, the director of highways had placed funds with the clerk of courts to cover the judgment awarded to a landowner.
Summary of this case from Queensgate Terminals, LLC v. City of CincinnatiOpinion
No. 35824
Decided June 10, 1959.
Highways — Appropriation of property by director — Verdict fixing compensation and damages — Voluntary payment and satisfaction of judgment — Appeal — Litigation terminated and cause moot.
APPEAL from the Court of Appeals for Montgomery County.
This proceeding was instituted by the Director of Highways for the appropriation of property for highway purposes. A jury returned a verdict fixing the value of the land taken exclusive of the structure thereon, the value of the structure, and the amount of damage to the residue, on which verdict judgment was rendered in accordance with the provisions of Section 5519.02, Revised Code.
The Court of Appeals affirmed the judgment and remanded the cause for further proceedings.
The allowance of a motion to certify the record brings the cause to this court for review.
Rauch, a landowner and an appellee herein, has filed a motion to dismiss the appeal on the ground that the cause "has become moot and neither requires nor justifies the decision of the court as to the merits of the appeal."
The ground for the motion is predicated on the following:
Prior to the date the notice of appeal was filed in this court, the appellant, Director of Highways, voluntarily paid to the Clerk of the Common Pleas Court a sum which, added to the original deposit, was the amount of the verdict on which judgment was rendered. The amount was paid on the day of the entry of the judgment of affirmance by the Court of Appeals, voluntarily, without reservation, and as satisfaction of the judgment and not in the form of a bond on appeal. On the same day, counsel for Rauch made application to the Clerk of the Common Pleas Court for distribution of the amount then on deposit, and the Common Pleas Court approved the application and ordered payment of the judgment money to Rauch. This order was complied with. Later the Director of Highways paid into court interest due on the judgment, which interest, upon application to and order of the court, was also paid to Rauch.
Mr. Mason Douglass and Mr. Floyd Koogler, for appellees.
Mr. William Saxbe and Mr. Mark McElroy, attorneys general, Mr. Hugh E. Kirkwood, Jr., and Mr. I. Charles Rhoads, for appellant.
The basic predicate of the motion to dismiss is that the judgment of the trial court was voluntarily paid and satisfied by the Director of Highways on the day the Court of Appeals affirmed the judgment and remanded the cause, and that this satisfaction of the judgment terminated the litigation. Rauch relies upon the case of Lynch v. Board of Education of City School Dist. of City of Lakewood, 116 Ohio St. 361, 156 N.E. 188, paragraph three of the syllabus of which reads as follows:
"Where the court rendering judgment has jurisdiction of the subject matter of the action and of the parties, and fraud has not intervened, and the judgment is voluntarily paid and satisfied, such payment puts an end to the controversy, and takes away from the defendant the right to appeal or prosecute error or even to move for vacation of judgment."
The Director of Highways contends that the right of appeal is not waived or abandoned by depositing with the trial court the amount of the award and taking possession of the property and cites as authority Muskingum Watershed Conservancy Dist. v. Funk, 132 Ohio St. 593, 9 N.E.2d 512, paragraph two of the syllabus of which reads as follows: "The right of a conservancy district to appeal from a judgment in such proceeding is not waived or abandoned by depositing with the trial court the amount awarded and taking possession of the property appropriated."
In that case, the amount of the award was deposited with the trial court but was not paid to the landowner. The appropriation was by a conservancy district, and the procedure authorized was prescribed by the chapter on appropriation of property, Sections 11038 to 11091, General Code (now Sections 2709.01 to 2709.46, Revised Code). Under the specific provisions of Section 11065, General Code (now section 2709.28, Revised Code), the payment of the award into court and the taking of possession of the land appropriated by the condemnor did not preclude the prosecution of an appeal from that part of the judgment fixing compensation.
In the instant case, Section 2709.28, Revised Code, is not applicable. The appropriation of the property was by the Director of Highways under authority of Chapter 5519, Revised Code, a part of the Highway Act. Judgment was rendered on the verdict in accordance with Section 5519.02, Revised Code. That judgment was paid to the landowner by order of the court. The litigation was, therefore, terminated, and the cause has become moot.
The appeal is dismissed on authority of Miner v. Witt, City Clerk, 82 Ohio St. 237, 92 N.E. 21, and Lynch v. Board of Education, supra.
Appeal dismissed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.