Annee v. State , 274 N.E.2d 260 ( 1971 )

274 N.E.2d 260 (1971)

Louis M. ANNEE and Mildred C. Annee, Appellants,
v.
STATE of Indiana, Appellee.

No. 770S159.

Supreme Court of Indiana.

October 21, 1971.

OPINION DENYING PETITIONS FOR REHEARING

HUNTER, Judge.

We have received a petition for rehearing from both parties in this case. Appellants' petition contains no new arguments except for a claim that our decision raises a conflict between two doctrines. One is the rule that the Supreme Court will not disturb an award for damages in a condemnation suit when the amount of the award is within the bounds of the probative evidence. The other rule is that the jury's view of the premises condemned is not to be considered by the jury as evidence. We fail to see how these two doctrines are necessarily conflicting. Although the view is not to be considered evidence, it does allow the jurors to better understand the testimony given by the witnesses at trial.

The State asks that we make provision for interest allegedly due the State on moneys drawn by the defendants over and above the amount awarded as damages by the trial court, and also that ten per cent (10%) damages be assessed per A.P.15(F). This Court is of the opinion that the moneys due the State cannot be deemed a judgment for money within the meaning of IC 1971, 24-5-1-2 (Ind. Ann. Stat. § 19-12-102 [1964 Repl.]). The award was for the defendants, not the plaintiff. The defendants drew three hundred ninety thousand eight hundred thirty-one dollars ($390,831) of the court appointed appraisers total award of four hundred twenty-eight thousand dollars ($428,000). The defendants were ordered to refund the difference between the amount previously drawn and the amount awarded by the trial court but this could not be considered a money judgment for the State. The State has not referred us to any case where an ordered refund such as occurred in this case was construed as a money judgment allowing interest upon it. In addition, we do not consider it a proper policy of the State to collect interest from its taxpayers in an instance such as this.

The damages of ten percent (10%) allowed under A.P.15(F) are discretionary with this Court and we feel they should not be issued without a strong showing of bad faith on the part of the defendants. Since the defendants cannot be sure they will be required to return the moneys until after their petition for rehearing is denied, bad faith has not been demonstrated.

For the above stated reasons both petitions for rehearing must be denied.

Petitions denied.

ARTERBURN, C.J., and DeBRULER, GIVAN and PRENTICE, JJ., concur.