Kansas City, Fort Scott & Southern Railway Co. v. Cox

Ellison, J.

This is a proceeding to condemn defendant’s lands in Newton county for railway purposes. Three commissioners were appointed by the circuit judge. They made their report on October 12, 1887, and an award of $277.33. Exceptions to this report embodying objections to the amount of defendant’s damages were filed, and a change of venue granted to Lawrence county from whence it was transferred to Jasper county by consent. When the case was called for trial on the exceptions the defendant demanded a jury ; whereupon the railway company offered to introduce testimony to the court without a jury to show that the award was just and reasonable and ought'not to be disturbed, which offer was refused and the company excepted. The court then granted defendant’s demand and impaneled a jury; to which action the company excepted. The issue made by the exceptions was tried by a jury and a verdict had for defendant fixing his damages at nine hundred and fifty dollars. The court thereupon rendered judgment vacating the award of the commissioners and for the amount of damages so found by the jury.

I. Plaintiff’s contention here is that the court should not have acceded to defendant’s demand for a jury until it first set aside the report of the commissioners for good cause shown by testimony as provided in section 896, Revised Statutes, 1879 ; and section 2738, Revised Statutes, 1889. This point is expressly ruled against plaintiff in the case of Kansas City, C. & S. Ry. Co. v. Story, 96 Mo. 611, where it is held, in an opinion by Sherwood, J., that, notwithstanding the statute, the constitution, section 4, article 12, provides for the trial by jury in such cases ; that such right is absolute on demand and does not depend upon the court ordering a new appraisement. But it is urged that in order to obtain this privilege, the defendant must have made the demand for a jury a part of his exceptions which he filed to the report. We think not. He may make his demand orally to the court as in ordinary actions before entering on the trial. The right to demand a jury is no part of the exceptions which are taken to the action of the commissioners. It results from the exceptions, but is not a part of them.

II. In our opinion the verdict of a jury on exceptions to the report, ipso facto, annuls or sets aside the award of the commissioners. The constitutional right to a jury is complete without regard to any action of the court on the report and may be enforced in the face of the approval of the report. Action on the report is, therefore, not a prerequisite to a trial by jury.

III. It may not be necessary to say what the rule would be in case of exceptions where a jury was waived but as counsel has cited us to the case of City of St. Louis v. Lanigan, 97 Mo. 175, we will state (though it is not necessary to so decide in this case) that in such case it would seem the land-owner would by the waiver elect to have the action of the commissioners tested under the rules governing the reports of commissioners, as expounded in this state and elsewhere. That is to say, if they have been properly instructed, and have not erred the principles upon which they have made their appraisal, and have been guilty of no misconduct, the amount named by them will not be disturbed, notwithstanding witnesses may testify to a greater sum. City of St. Louis v. Lanigan, supra, and cases cited; City of Kansas v. Street, 36 Mo. App. 666.

The judgment will be affirmed.