Snyder v. Commissioners , 29 Ohio App. 177 ( 1927 )

The defendant in error, the board of county commissioners of Stark county, passed the necessary legislation to improve a highway located in Stark county, designated as the Canton-New Franklin Intercounty Highway. This improvement, as planned, required the appropriation of about one-quarter of an acre of a farm owned by the plaintiff in error, A. Talmadge Snyder.

Mr. Snyder, being dissatisfied with the findings and orders of the defendant in error, conformably to the statute providing therefor, filed notice of his appeal, first, as to the compensation for land appropriated; second, as to the damages claimed to property affected by the improvement; and, third, as to the order establishing the proposed improvement.

Thereafter, an appeal bond having been given and approved, the cause was docketed in the probate court. All of the preliminary questions and motions on said appeal having been heard and determined, and the court finding that the appeal had been properly perfected, a jury was summoned and impaneled in that court and a trial had of the issues involved.

Upon the verdict returned, which related only to the amount of compensation awarded Snyder, judgment was entered by the probate court. Error proceedings were prosecuted therefrom to the court of common pleas, where the judgment was affirmed. By these proceedings in error it is sought by plaintiff in error to reverse this judgment so affirmed. He contends that the trial judge failed to submit to the jury all of the issues required by law to be submitted, and that the jury failed to include in its verdict one of the findings made mandatory by statute; and also that the court erred in overruling the motion of plaintiff in error for a new trial upon the grounds therein set forth, among which is the claim that the verdict is not sustained by sufficient evidence and is manifestly too small in amount.

The proceedings had before the board of county commissioners and the proceedings on appeal in the probate court are statutory. No pleadings are authorized to be filed in the probate court by any of the interested parties. What the issues shall be and what findings the verdict shall include are definitely fixed by Section 6894-7, General Code. This section provides:

"At the conclusion of the trial, the court shall charge the jury and the jury shall find and return a verdict separately upon each claim for compensation and damages, if a final order or judgment or [of] the county commissioners in reference to compensation and damages be appealed from. The jury shall also determine in their verdict whether the improvement petitioned for or granted will be conducive to the public convenience and welfare, if an order establishing the proposed improvement or dismissing or refusing to grant the prayer of the petition be appealed from. If a new trial shall not be granted for cause shown, the probate court shall render a judgment in favor of the appellants for the amount of the verdict, if any, returned by the jury in their favor. He shall also make a finding for or against the improvement, based on the verdict of the jury."

The trial judge in his charge to the jury, and by the form of the verdict submitted, presented to the jury but one of the issues mentioned in this section, that of compensation and damages, and ignored entirely the issue of "whether the improvement petioned for or granted will be conducive to the public convenience and welfare." Section 6894-6, General Code, provides that "the parties shall offer their evidence to the jury * * * upon the matters appealed from" and that "the rules of law and procedure governing civil cases in the common pleas court shall apply to the trial of the cause in the probate court," and, as will be observed above, Section 6894-7 provides that "at the conclusion of the trial" certain specified questions shall be submitted to the jury and certain specified findings shall be made by the jury.

The form of verdict submitted by the trial court to the jury, as is printed thereon, shows that it was intended for proceedings under other sections of the General Code, and although, as we view it, the statute is plain as to how the trial judge shall proceed, he may have been misled by the silence of counsel and the form of verdict used. But silence of counsel will not waive what the statute expressly provides shall be done. Forest CityProvision Co. v. Blaha, 18 C.C. (N.S.), 33, 32 C.D., 575.

Not only did the court not submit to the jury the question upon which the statute expressly required a finding by the jury, and a judgment thereon by the court, but in effect charged the jury that it was not in issue, for, in connection with what he had to say as to the compensation and damage, if any, to be awarded, he said, "And the further fact that the county needs it [referring to the land of Snyder] has nothing to do with your finding."

An appeal having been taken by the defendant in error from all the proceedings had before, and the orders made therein, the statute is mandatory with respect to the issues to be submitted to the jury, the findings which the verdict of the jury shall include, and the character of the judgment to be entered thereon by the court. It does not provide for two trials to determine the questions in issue, but, as is evident, requires all of the issues to be submitted to the one jury impaneled to try the issues involved, and this court is of the opinion that the trial court erred in failing to submit to the jury the omitted question, which the statute requires "the jury shall also determine in their verdict," based upon which verdict the court "shall also make a finding for or against the improvement."

A majority of the court being of the opinion that the statute does not authorize or permit separate trials of the issues involved, but requires that all of them should be submitted together under proper instructions of the court, the judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed and cause remanded.

RICHARDS, J., concurs.