Opinion
No. 33542.
February 6, 1939.
1. COURTS.
The provisions of statute regarding practice and procedure in county court means that appropriate instructions shall be given by county court as provided by law for instructing jury in the circuit court (Code 1930, section 696).
2. EMINENT DOMAIN.
In eminent domain proceedings in county court there must be a full hearing and not one limited, as is provided in chapter on eminent domain, when the court is composed of justice of peace and a jury (Code 1930, section 696).
3. COURTS.
Under statute providing for appeal from county court to circuit court, the circuit court considers the case on the record made in the county court and, if harmful error is found, grants a new trial de novo in the circuit court, if not, affirms the judgment (Code 1930, section 704).
4. EMINENT DOMAIN.
In eminent domain proceedings in county court there must be a full hearing for both sides including appropriate instructions (Code 1930, sections 696, 1491).
5. EMINENT DOMAIN.
An appeal from county court to circuit court in eminent domain proceedings is on record made in a county court, and if no error is found there is affirmance, and if there is error there must be a reversal and trial de novo in the circuit court (Code 1930, sections 696, 704, 1491).
6. EMINENT DOMAIN.
In eminent domain proceedings in county court, refusal to grant requested appropriate instructions in addition to one provided in chapter on eminent domain was error (Code 1930, sections 696, 1491).
7. EMINENT DOMAIN.
In eminent domain proceedings, error of county court in refusing to grant requested appropriate instructions in addition to one provided in eminent domain statute appeared on face of record of trial so that circuit court on appeal should have granted a trial de novo (Code 1930, sections 696, 704, 1491).
APPEAL from the circuit court of Jones county; HON.W.J. PACK, Judge.
Russell Wright, Assistant Attorney General, for the appellant.
A careful examination of this record will disclose that while the county court in term time proceeded to try the case on its merits, it did not proceed to follow the procedure relative to nine jurors returning a verdict, and did not proceed to act as a court at all, but granted only the one statutory instruction for the benefit of the jury provided in the eminent domain chapter, and refused all of the instructions asked on behalf of the petitioner; and, in all other respects proceeded to try the case simply as a special court of eminent domain, in which the presiding officer acted simply in a ministerial capacity.
In this case, we think there is no doubt that the trial should have been held de novo for the reason there was manifest error in the refusal of the county court to grant the instructions requested by the petitioner and refused, each and every one, by the county court. The circuit court, in examining the record on this refused instruction, should have granted a new trial in the circuit court because of the error in the ruling of the county judge in refusing the requested instructions and in refusing to sustain the objections to the testimony as shown by the record before the circuit judges.
State Highway Commission v. Day, 180 So. 794; Holmes v. Elmer, 181 So. 325.
In the case of City of Hattiesburg v. Pritchett, 160 Miss. 342, 134 So. 140, this court, on May 4, 1931, has decided this question and held that the appeal to the circuit court in eminent domain proceedings should be an appeal on the record and that such appeal should be based on assignment of errors and bill of exceptions, just as other civil appeals from the county court to the circuit court.
State Highway Commission v. Carraway, 160 Miss. 263, 134 So. 846; Miss. State Highway Dept. v. Haynes, 162 Miss. 216, 160 So. 73.
Evidence as to the particulars or details in which the property will be damaged or benefitted by the improvement is admissible so far as the same tends to show the effect of the improvement on the value of the property, but these elements are not admissible as independent items of damage or benefit.
City of Higgins, 81 Miss. 376, 33 So. 1; Schlicht v. Clark, 114 Miss. 354, 75 So. 130; 5 Enc. Ev., page 204; Miss. State Highway Dept. v. Blackburn, 172 Miss. 554, 160 So. 73; State Highway Commission v. Campbell, 173 Miss. 397, 161 So. 461; State Highway Commission v. Buchanan, 175 Miss. 157, 166 So. 537; State Highway Commission v. Chatham, 168 So. 277.
Deavours Hilbun, of Laurel, for appellees.
Chapter 256, Laws of 1932, amending Section 704, Code of 1930, relating to appeals from county courts, provides: "Appeals shall be considered solely upon the record as made in the County Court."
Special eminent domain courts are abolished in counties having county courts, such as Jones County, and their jurisdiction is vested in county courts.
Code of 1930, sec. 693.
This court has held in three cases that appeals in suits of eminent domain, brought in the county court, and appealed to the circuit court, are not triable de novo on appeal to the circuit court.
City of Hattiesburg v. Prichett, 134 So. 140; State v. Carraway, 134 So. 846; Miss. State Highway Dept. v. Haines, 139 So. 168.
Section 1491, Code of 1930, appearing in the eminent domain chapter, providing a statutory form of instruction in eminent domain cases, was enacted long before Chapter 17 of the Code providing for county courts was enacted. The instruction provided by this statute has long been recognized by the courts of this state, as a just and fair rule for the assessment of damages in cases of this character. We have not been able to find any case in the courts of this state wherein this instruction has been criticized or condemned as being unfair to either party in eminent domain cases. Chapter 17, enacted long subsequent to the chapter on eminent domain, contains no express repeal of any of the provisions of the eminent domain chapter, except Section 1481, which vests eminent domain proceedings in a special court composed of a justice of the peace and a jury. And in this chapter 17, on county courts, section 696, with reference to practice and procedure in the county courts, it is provided: "In proceedings which, if there were no county courts, would have to be brought in a court of a justice of the peace, or before a tribunal of a justice or justices of the peace, the same practice in the county court shall be followed if the matter were in said justice court, general or special."
This statute, Section 696, Code of 1930, was construed by this court in the case of Mississippi State Highway Department v. Haines et al., 139 So. 168.
It appears without doubt to us that this court, in this well considered case, has already decided the question argued here. In this case, one the jurisdiction of which was taken away from a special eminent domain court, and given to the jurisdiction of the county court, the pleadings, practice and procedure shall be the same in the county courts as in the special court of eminent domain formerly having jurisdiction.
We earnestly urge that the procedure followed by the lower courts has been in line with the statutes and the former decisions of this court, and there is no error in the procedure. But should this court decide that there was error in the procedure, certainly it would not warrant a reversal of this case, because the case was tried on its merits on evidence that would have been proper and necessary under any state of pleading and practice. If the procedure be improper, and we earnestly submit it is entirely proper, then the court should, in our opinion, announce the proper procedure, without reversing and remanding the case, which would further delay the appellees in the collection of damages to their property as awarded by the jury.
Appellant brought an eminent domain proceeding against appellees in the county court of Jones county, to condemn a right of way for a public highway over their lands. There was a trial in the county court, resulting in a verdict and judgment in the sum of $675. From that judgment appellant appealed to the Circuit Court on the record made in the county court. In the county court the statutory instruction prescribed in section 1491, Code of 1930, to be given in eminent domain proceedings had before a justice of the peace and a jury was given. Other instructions were asked, and refused by the court. The appellant made a motion for a new trial, which was overruled.
In the Circuit Court the appellant assigned errors alleged to have been committed by the county court, and also made a motion for a trial de novo in the Circuit Court, which motion was overruled. The Circuit Court, finding no error on the record made in the county court, affirmed the judgment; from that judgment the appellant prosecutes this appeal.
The question is, whether an eminent domain proceeding should be tried in the county court upon a full hearing, including the giving of appropriate instructions for the parties, as any other civil causes are tried in those courts. We are of the opinion that the question must be answered in the affirmative, and we reach that conclusion upon the following considerations:
The last clause in section 696, Code of 1930, gives the county courts exclusive jurisdiction in such actions. Section 696 of the Code of 1930 provides, among other things, as follows: "In proceedings which, if there were no county court, would have to be brought in a court of a justice of the peace, or before a tribunal of a justice or justices of the peace, the same practice in the county court shall be followed as if the matter were in said justice court, general or special; . . . Provided, however, that all pleadings in the county court shall be in writing, and the jury in law or criminal cases shall be instructed by the judge in the manner now provided by law for instructing the jury in the circuit courts; provided further, that by consent of the parties, the instructions of the court may be given by an oral charge after the argument, but in so doing the judge shall not comment on the weight of the evidence."
Those two provisions of the statute, construed together, mean that appropriate instructions shall be given by the county court, as provided by law for instructing the jury in the Circuit Court. In other words, that there shall be a full hearing in the county court, and not one limited, as is provided in the chapter on eminent domain, when the court is composed of a justice of the peace and a jury. It follows that under section 704, Code of 1930, providing for appeals from the county court to the Circuit Court, the Circuit Court considers the case on the record made in the county court, and if harmful error is found, grants a trial de novo in the Circuit Court — if not, affirms the judgment. To hold that the trial in the county court is confined to less than a full hearing (which would be true if appropriate instructions were not permitted), and an appeal to the Circuit Court is on the record alone made in the county court, and trial de novo cannot be had in the Circuit Court, except as a result of error in the trial in the county court, might amount to denial of due process. We do not pass on that question, because it is not necessary. We simply hold that an eminent domain proceeding in the county court is in the same category as any other civil cause in that court. There is a full hearing for both sides, including appropriate instructions; an appeal to the Circuit Court on the record made in the county court; and if no error is found there is an affirmance; if there be error, a reversal and trial de novo in the Circuit Court. State v. Carraway, 160 Miss. 263, 134 So. 846; City of Hattiesburg v. Pritchett, 160 Miss. 342, 134 So. 140. The Court held in both of those cases that on appeal from the county court to the Circuit Court in an eminent domain proceeding, the trial is not de novo in the Circuit Court, but is upon an assignment of errors. In the Pritchett Case the Court held that section 704 of the Code applied to all appeals from the county court to the Circuit Court, including eminent domain cases.
We do not understand that those cases, and what we are holding in the present case, conflict with State Highway Commission v. Day, 181 Miss. 708, 180 So. 794, and Mississippi State Highway Department v. Haines, 162 Miss. 216, 139 So. 168. In the Day Case the question here involved was expressly pretermitted. The opinion states that there was no request made in the Circuit Court for a trial de novo, or objection of any kind interposed as to the procedure in that court. The Haines Case sustains, rather than conflicts with, what we are holding. It was held, among other things in that case, that the county court act did not repeal the eminent domain chapter, but that both must be construed together, and all provisions of each, not repugnant to those of the other, must stand. And that, so construing the statutes, appeals from the county court to the Circuit Court in eminent domain proceedings must be taken within ten days from judgment, or such extended time as the county judge might grant; and that the appellant must give notice to the stenographer to transcribe his notes, as prescribed by the statutes relating to court stenographers, sections 700-725, Code of 1930.
Whether the eminent domain court, composed of a justice of the peace and jury, provided for in the chapter on eminent domain, acts ministerially rather than judicially, is not involved in this case. It would, therefore, be inappropriate to determine whether or not Sullivan v. Yazoo M.V.R. Co., 85 Miss. 649, 38 So. 33, holding that such a court acts ministerially, and not judicially, should stand.
It follows from what has been said that the county court erred in refusing to grant the requested appropriate instructions, in addition to the one provided in the chapter on eminent domain, section 1491, Code of 1930. That error appeared on the face of the record of the trial, which went up to the Circuit Court on appeal; which court, upon that ground, should have granted a trial de novo.
Reversed and remanded.