Oregon R. & N. Co. v. Eastlack , 54 Or. 196 ( 1909 )

Mr. Justice Slater

delivered the opinion of the court.

This action was brought to condemn for the use of the plaintiff lots 2, .3, 4, and 5, in block 12, of Riverside addition to the town of La Grande, to enable it to construct additional, side tracks, switching facilities, and repair shops in its depot grounds in said city. The complaint is in the usual form, alleging the plaintiff’s corporate existence; the extent and character of its business as a common carrier; the necessity of the use of said lots in the performance of its public duties; its inability to agree with the owners as to the' value thereof, which, it is averred, does not exceed $250.

The answer admits the material averments of the complaint, except the alleged value of the land sought to be taken, which is therein stated at $3,000. At the trial plaintiff called J. B. Eddy to testify in its behalf as to the value of the lots. After stating that for seven or eight years he had been assistant right of way agent of the plaintiff, and during that time had been familiar with the lots in question, and otherwise qualifying to the satisfaction of the court as a competent witness, he testified that the lots were worth $100 to $150 a lot, according to the lay of the land. On cross-examination he was asked: “You bought block 13 from Mr. Grandy ?” The answer was, “Yes.” He then was asked: “Tell us what the Oregon Railroad & Navigation Company paid for block 13.” This was objected to by plaintiff “as not the measure of valuation.” Before a ruling was made by the court, counsel for defendant asked: “When did you buy block 13?” To which the answer “I guess about a year ago,” was given. Then the court overruled the previous objection, and the question was repeated in this form: “What did you pay for block 13?” To which witness replied: “I paid $5,000 for block 13.” Again witness was asked: “You bought lot 6 in block 12 also?” To which counsel for plaintiff objected as incompetent, irrelevant, and immaterial. The objection was overruled; and, after stating that lot 6 was bought in connection with a parcel of land lying south of block 13, witness was asked what he paid for lot 6 and the parcel south of block 13. The answer was, “$5,000.” After witness had answered, plaintiff interposed the same obj ection as previously made. But, the court declining to rule on the objection because the question had been answered, plaintiff moved to strike out the answer as incompetent, irrelevant, and immaterial. This was denied. B. W. Grandy, as witness for plaintiff, testified that the lots were worth $400 to $500. On cross-examination he stated he at one time had owned them, and that 12 or 15 years ago he sold them to Mr. Crane, from whom defendants inherited the property. He was then asked: “What was the consideration for the sale?” Witness said he traded the lots for a piece of land. He was asked: “What did you regard these lots as worth in that trade?” This was objected to as “incompetent, irrelevant, and immaterial, unless it was a cash proposition, or something that can be measured by money; this not being evidence of market value.” The objection was overruled, and the witness answered: “He asked $600 for the property, and I asked $400 for the lots — we traded that way, and I gave him $200 to boot. That’s the way we traded.” This witness was also required to state, over plaintiff’s objections, that he and his son had sold said block 13 to plaintiff for $5,000. Fred Hamilton was called by the defendant to testify as to the value of the lots. He stated he had seen these lots, and, being asked what he knew about the value of real estate in that vicinity, said he knew “only what other property was selling for in that neighborhood.” Being asked what was the value of the lots in question for any purpose to which they can be applied, an objection was made that witness had not shown himself qualified to testify. This was overruled, and witness answered: “Well, as I stated before, I based my opinion on what other land in that vicinity is selling for. I have been told that land in there — them lots in there — that Mr. Grandy sold eight lots for $5,000 to $6,000.” The question being renewed, witness said: “Well, I would not like to say, because I really don’t know exactly.” On plaintiff’s motion the former answer was stricken out. The same question was again asked, and the answer was: “Why, if these Grandy lots are worth $5,000 on a closed street, then these lots, I should think, should be worth on an open street at least one half.” This was also stricken out, and the jury instructed not to consider it. Witness was again asked to state what in his judgment these lots are worth without making reference to any other property, and he answered: “Well, I should say, $2,500.” On cross-examination witness stated that his opinion as to the value of this property was based on what he had heard the Grandy property had sold for, and, based thereon, plaintiff moved to strike out this testimony, which motion was denied. A verdict for $1,300 was rendered in favor of defendant, and a judgment was entered appropriating the property to the plaintiff upon the payment of the said sum, from which plaintiff has appealed, assigning as errors the several rulings of the court above stated.

On Motion to Dismiss.

1. Defendants have moved to dismiss the appeal upon the ground that the judgment from which the appeal is attempted to be prosecuted is not a final judgment or order, that it is a void judgment, and that plaintiff had abandoned the proceedings. The argument is that because the judgment upon its face shows that plaintiffs never paid to the clerk of the court below the amount of damages assesed by the jury, as required by Section 5102, B. & C. Comp., the court had no power to enter any judgment, and hence what it attempted to do in that respect is a nullity. The question whether the court had power to render and enter an order or judgment of the character disclosed by the record has been dicussed at considerable length by counsel, but we are of the opinion that in order to sustain the jurisdiction of this court to entertain tnis appeal, it is not essential to determine that question. Conceding all that' defendants claim as to the effect of the judgment with respect to a transfer of title, it is nevertheless a judgment in form. It concludes the parties as to plaintiff’s right and power to condemn, the amount to be paid for the property, and the payment of costs, and adjudges “that said lands herein-before particularly described, and the title to the same as it obtained and existed upon the date of the filing of the complaint in this case, be and the same is hereby appropriated and taken from the defendants to this plaintiff upon the deposit by the plaintiff in lawful money of the United States of the sum of $1,300,” etc. Nothing was reserved by the court for its further consideration or determination, but as to it the judgment entered was a final act.

2. As to the plaintiff, it was required to pay the amount thereby adjudged as lawful damages before it can acquire any title, and upon making payment it would be entitled to execution if the judgment was not void. But a void order or judgment, made or entered at a time when the court is without power or jurisdiction to award it, is nevertheless reviewable on appeal, Trullenger v. Todd, 5 Or. 36; Smith v. Ellendale Mill Co., 4 Or. 70; Deering v. Quivey, 26 Or. 556 (38 Pac. 710) ; Hoover v. Hoover, 39 Or. 456 (65 Pac. 796). Under the statutes of some states a failure of the condemning party to pay the amount of the award within a fixed time after the confirmation of the award, or the entry of the final judgment in the condemnation proceedings, amounts to an abandonment of the proceedings. 15 Cyc. 940. But we have no such statute here, and without it this court has no power to limit or curtail the right given by the statute to appeal when that right has once attached. In the case of Oregonian Ry. v. Hill, 9 Or. 378, there was no assessment of damages by the court or by a jury, but a judgment in personam, was rendered upon the allegations in the answer as by default, and in Oregon Ry. Co. v. Bridwell, 11 Or.282 (3 Pac. 684), a jury assessed the damages, but a personal judgment was entered for the amount. In each of these cases the judgment was held to be without authority of law and a nullity, yet an appeal therefrom was entertained. It follows that the motion to dismiss must be overruled.