Staverson v. Kentucky Utilities Company , 216 Ky. 309 ( 1926 )

Affirming.

In this action appellant sought to condemn an easement in a strip of land fifty feet wide and thirty-eight hundred and twenty feet long over the lands of appellant for the purpose of constructing and maintaining a high-powered transmission line, and also the right to remove timber that endangered its lines for a distance of fifty feet on either side of the center line of the easement, sufficient land to be taken for the base of its towers and to place its poles.

On a trial in the Rockcastle county court appellants were awarded the sum of $2,900.00 in damages. A new trial was granted and on a second trial appellees were awarded $4,000.00 in damages, which appellee paid and immediately prosecuted an appeal to the circuit court where a jury awarded $1,000.00 in damages. As this was $3,000.00 less than the the amount paid on the county court award, judgment was entered in accordance with the verdict but in favor of the plaintiff for the excess so paid.

Several grounds were stated in the motion for a new trial, but only one of these is urged in this court as a ground for reversal and it alone will be considered, to-wit, that the court erred in overruling a motion to dismiss the appeal from the county court and in sustaining a demurrer to an amended answer in the nature of a plea in abatement, both the motion and the amended answer being based on the ground that the final judgment in the county court was a "consent" judgment, leaving nothing in controversy and therefore not appealable.

The motion was supported by several affidavits tending to show that the trial jury, after a long consideration, appeared unable to agree on a verdict and that the parties agreed on a settlement and consented for the jury to be called in and to return the verdict hereinafter quoted, which was accordingly done.

It may be conceded that the legal principle as to the effect of a consent judgment is as claimed by appellants and that the case turns upon the character of the county court judgment. 3 C. J. Appeal and Error, section 546; West v. West, 65 S.W. 813. Duncan v. Louisville, c., 13 Bush 378; Lodge v. Williams,195 Ky. 713, and authorities there cited.

The judgment reads:

"This day came the defendants, Gus Staverson and Louisa Staverson, and plaintiff, Ky. Utilities Co., each of whom have heretofore excepted to the commissioners' report herein and announce ready for trial. Thereupon came the following jury, to-wit, . . . duly selected, impaneled and sworn to try said proceeding, and after hearing argument of counsel returned the following verdict:

" 'We the jury find for the defendant for damages by reason of taking and using the easement, $2,000.00; we further find for the damage to the residue of defendants' land $2,000.00. J.C. Rimel, foreman.'

"It is therefore the judgment of the court that $2,000.00 is the value of the strip of land for the purposes hereinafter stated and sought to be condemned herein and $2,000.00 for the damage to adjacent lands, including the advantages and disadvantages resulting to the adjacent lands of the defendant considering the purpose for which the land is taken. . . ."

The nature, character and purpose of the easement acquired is then set out in great detail, together with the adjudication of costs, the judgment closing with the words:

"The plaintiff objects to the amount of damages awarded in this judgment and prays an appeal to the Rockcastle circuit court, which is granted."

The amended answer is in these words:

"Now comes the defendants and say there is no controversy between the parties in this action, and nothing for a jury to try; they say that this case was appealed from the Rockcastle county court, and that there was an agreed and consent judgment in the Rockcastle county court, on the _____ day of __________, 19__, for the sum of $4,000.00; that the plaintiffs and defendants and attorneys for the plaintiff and defendants agreed and consented that a judgment for $4,000.00 may be entered in said Rockcastle county court, by the consent and sanction of the regular judge of said county court, presiding at the time; that immediately after the plaintiffs gave to the defendants a check for $4,000.00, and paid the full amount of said agreed judgment, and that the plaintiff also paid the costs of this action, and that there is nothing now for the court to try, and that this action should be dismissed settled."

It will be observed that the county court judgment is on its face a regular judgment of the court and makes no reference to any agreement or consent of the parties and that the last paragraph contains a positive objection on the part of the plaintiff to the amount of damages; and that an appeal to the circuit court is prayed and granted. The question to be determined is whether or not parol evidence is permissible to show that in fact this was a consent judgment. Clearly such evidence is inadmissible. Without passing on the question whether it is necessary to embody the words "by consent" or "by agreement" in a consent judgment to distinguish it from an ordinary judgment, the concluding paragraph of this judgment clearly shows that the plaintiff was objecting to the amount of damages and asking an appeal to the circuit court. Certainly this language negatives consent and unless modified must be overcome by extraneous evidence before it can be said that the judgment was by consent.

An elementary principle of law, founded upon a sound consideration of public policy, is that "parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument." Greenleaf on Evidence, section 275. In a more marked degree is this true of judicial records and judgments of court, upon the stability of which the rights of property and the safety of society rest, and to which the rule is rigidly applied.

It is thus stated in 22 C. J., Title Evidence, section 1388:

"The rule under discussion is stringently enforced to forbid the admission of any parol or extrinsic evidence to contradict, impeach, vary or explain judicial records, especially where the right of third persons acquired under a judgment would be affected. This rule protects pleadings forming a part of the judgment roll, recitals in the record, the description of a writ and even it has been held the clerk's file mark on the return of a writ, or his entry of the filing of his bill of exceptions in his office. It also precludes the admission of evidence showing the grounds of a judgment, order or decree, or to show that the grounds on which a judgment was apparently based did not exist, or that a verdict was improper."

Many cases are cited in support of the rule which is in line with the following cases from this court: McCreary County v. Bryant, 173 Ky. 363; Riddell v. Boone County, 183 Ky. 77; Fox v. Lantrip, 169 Ky. 759; Handley v. Russell, 3 Ky. 145; Barnett v. Gilbert, 164 Ky. 564; Grayson County v. Rogers, 122 S.W. 866; Kenton County v. Jamison, 150 Ky. 440; Renshaw v. Cook, 111 S.W. 377; Pilcher v. Ligon, 91 Ky. 229; Bennett v. Tiernay, 78 Ky. 584; Green v. Goodrum, 4 Met. 275.

It will further be observed that the defendants did not appeal from the county court judgment. On the contrary, of necessity they relied on the validity of that judgment, and at the same time sought to deny the effect of one of its integral parts. The judgment could not have been so modified except in the tribunal in which it was rendered and in one of the ways pointed out by section 518 of the Civil Code. As presented in the circuit court it was a collateral attack upon the judgment by one of the parties thereto, which is not permissible even for fraud or mistake (matters not here alleged). It follows that the action of the court in overruling the motion to dismiss the appeal and in sustaining a demurrer to the amended answer was proper.

Wherefore, perceiving no error, the judgment is affirmed.