Opinion
No. 41580.
November 28, 1960.
1. Eminent domain — damages — award excessive — remittitur ordered.
In eminent domain proceeding brought by State Highway Commission, award of $6,900 was excessive and remittitur of $2,300 was properly ordered.
Headnote as approved by Arrington, J.
ON MOTION TO DISMISS APPEALSeptember 26, 1960 123 So.2d 238
2. Appeal — new trial — appeal from order granting a new trial on ground of excessiveness of damages authorized.
Where, on appeal to Circuit Court, after appellant had been awarded judgment in County Court, a new trial was ordered unless a remittitur of $2,500 was entered, and new trial was ordered after appellant refused to enter remittitur, appeal would lie from order granting new trial. Secs. 1147, 1536, Code 1942.
Headnote as approved by Gillespie, J.
APPEAL from the Circuit Court of Jones County; LUNSFORD CASEY, Judge.
George D. Maxey, Deavours Hilbun, Laurel, for appellants.
I. The Circuit Judge erred in ordering a remittitur. Gibson v. Lindsey, 233 Miss. 853, 103 So.2d 345.
Matthew Harper, Jr., Asst. Atty. Gen., Jackson; Welch, Gibbes Graves, Boyd Holifield, Laurel, for appellee.
I. The verdict of the jury is not in accord with the law and the evidence and was contrary to the weight of the law and evidence. The verdict of the jury is so excessive as to denote bias, prejudice and passion of the jury and, therefore, the lower court erred in refusing a new trial.
A. The verdict of the jury was not in accord with the law and the evidence and was contrary to the weight of the law and evidence. Board of Levee Commrs. v. Hendricks, 77 Miss. 483, 27 So. 613; Board of Levee Commrs. v. Nelms, 84 Miss. 416, 34 So. 149; Mississippi State Highway Comm. v. Hillman, 189 Miss. 850, 198 So. 565; Mississippi State Highway Comm. v. Hudgins, 182 Miss. 518, 181 So. 719; Mississippi State Highway Comm. v. Rogers, 236 Miss. 800, 112 So.2d 250; Jahr on Eminent Domain, Sec. 150; 5 Nichols on Eminent Domain, Sec. 18.4(1) p. 135.
B. The verdict of the jury is so excessive as to denote bias, passion and prejudice on their part. Great Atlantic Pacific Tea Co. v. Davis, 177 Miss. 562, 171 So. 550; City of Jackson v. Landrum, 217 Miss. 10, 63 So.2d 391; Mississippi State Highway Comm. v. Ellzey, 237 Miss. 345, 114 So.2d 769; Mississippi State Highway Comm. v. Rogers, supra; Mississippi State Highway Comm. v. Turnipseed, 236 Miss. 764, 111 So.2d 925; Mississippi State Highway Comm. v. Williamson, 181 Miss. 399, 179 So. 736; S.H. Kress Co. v. Sharpe, 156 Miss. 693, 126 So. 650; 5 Nichols on Eminent Domain, Sec. 18.4(1) p. 135.
II. The Court erred in allowing the introduction of certain evidence by appellants over the objection of the appellee. Mississippi State Highway Comm. v. Turnipseed, supra.
This is an eminent domain proceeding which originated in the County Court of the First Judicial District of Jones County by the Mississippi State Highway Commission against the appellants, Ethel Pearson Strickland and W.E. Strickland. There was a jury verdict and judgment entered in the amount of $6900. A motion for a new trial by the Mississippi State Highway Commission was overruled and the Commission appealed to the Circuit Court of Jones County where the court held that the damages were excessive and ordered a reversal in the case unless the landowners entered a remittitur in the amount of $2300 within ten days. The landowners declined to enter the remittitur and appealed to this Court.
(Hn 1) After a careful investigation of the facts in this record, we are of the opinion that the circuit court was correct in finding that the damages were excessive and in ordering a remittitur of $2300. Therefore, it follows that the judgment of the circuit court should be affirmed and remanded for a new trial, unless within ten days from this date a remittitur in the amount of $2300 is entered herein. If such remittitur is so entered, a judgment for the remaining amount in the sum of $4600 will be entered.
Affirmed.
Hall, P.J., and Lee, Kyle and Holmes, JJ., concur.
ON MOTION TO DISMISS APPEAL
It appears from the motion that in county court appellant was awarded a judgment for $6,900. On appeal to circuit court a new trial was ordered unless a remittitur of $2,300 was entered. Appellant refused to enter the remittitur and a new trial was ordered. Appellant perfected an appeal to this Court from the order granting a new trial.
(Hn 2) Appellee says that under Section 1147, Code of 1942, an appeal does not lie because the order granting a new trial is not final. We so held in a number of cases, but those cases were denied before the enactment of Chapter 230, Laws of 1956 (Section 1536, Code of 1942), which provides:
"Every new trial granted shall be on such terms as the court shall direct; and no more than two new trials shall be granted to the same party in any cause. Provided, however, that when the sole ground for a new trial is the excessiveness or inadequacy of damages assessed, the party aggrieved may elect to appeal from the order granting a new trial." (Emphasis added)
The last sentence of the statute was added by the 1956 Act and authorizes an appeal from an order granting a new trial on the ground of excessiveness of the damages assessed. Gibson v. Lindsey, et al., 233 Miss. 853, 103 So.2d 345.
Motion to dismiss appeal overruled.
Hall, P.J., and Holmes, Ethridge and McElroy, JJ., concur.