Case 63 — Condemnation Proceedings by the L. & N. R. R. Co. for Right of Way over the Farm: of A. J. Asher.

June 15.

#### Asher v. Louisville & Nashville R. R. Co.

APPEAL FROM BELL CIRCUIT COURT-D. W. SANDERS, SPECIAL JUDGE.

Judgment for Plaintiff and Defendant Appeals.

Reversed.

Eminent Domain — Condemnation Proceedings — Judgment—payment — Reversal—Restitution—(Notice—Filing—Abandonment.

1. Where, several years after reversal of a judgment in condemnation proceedings, a notice hy the appellant was filed-that it would on a certain day of the term move to file the mandate of the Court of Appeals and redoclret the case, hut no motion was in fact made to redocket, and the mandate was not filed, the .case stood as if no notice had heen made under Civ. Code, sec. 447, permitting proceedings on motion in cases specially authorized by statute, but declaring that, unless the motion be made on the day specified in the notice, it shall be considered as abandoned.

2. Where a case! has been stricken from the docket, and has remained' off the docket for several years before it can be reinstated by either party a notice should be served on the opposite party of the intention to have an order made to that effect.

3. In condemnation proceedings by a railroad company judgment was entered against it in the sum of $3,000, which it paid, but subsequently, on its appeal, the judgment was reversed. Several years afterwards the trial court issued an order reciting that the mandate of the Court of Appeals had been filed, and in obedience thereto the judgment for $3,000 was set aside, and the case re-docketed. On a second assessment of the damages the owner was allowed $900. Held, that the court had no authority to render judgment against the owner for the difference between the judgment for $900 and the judgment for $3,000, as the owner would have to be brought before the court by rule or direct action to authorize the restitution.

HAZELRIGG, CBENAULT *&*HAZELRIG.G and N. B. HAYS FOR, APPELLANT.

J. W. ALCORN, R. D. WARFIELD for appellee.

[Note by reporter: This case was tried in 1887, resulting in a verdict, fixing the damages to plaintiff’s land at $3,000, from *494which judgment defendant appealed, and pending the appeal defendant paid plaintiff the amount of the judgment.

'The trial of the ease was delayed in the appellate court until 1891, when it was reversed. No further proceedings seem to have been taken until the May term, 1899, eight years after the reversal, when it was again tried in the lower court, and a verdict rendered fixing the damages at $900. Upon the rendition of this verdict, on motion of the railroad company a-n order of restitution was made directing the appellee in the original appeal, Asher to pay to the railroad company $2,100, the difference in the two verdicts. This trial was had before a special judge, Hon. D. W. (Sanders, of Louisville, who left the county where the trial was had, before the motion for a new trial was had or heard, although such motion was tendered to the clerk, with affidavits, •within three days after the trial, showing that appellant, Asher’s counsel were absent at the trial and could not attend, and claiming the trial was prematurely had without notice to Asher •or his counsel, and setting out various alleged errors in the trial to the prejudice of appellant, Asher. These grounds and motions are exceedingly voluminous as well as the briefs of counsel both for the appellant and appellee, in neither of which briefs are the points relied on, classified as required by rule 17, of the Court of Appeals and same can not well be abstracted by the reporter in convenient space.]

Opinion op the court by

JUDGE! NUNN

Reversing.

In the year 1887 the appellee began condemnai ion proceedings to condemn a right of way over appellant Asher’s farm in Bell county. A jury awarded appellant in that •action $3,000 in damages. On appeal to this court that .judgment was reversed, the opinion of this court in that •case being delivered in February, 1891, and reported in 13 S. W., 517, 12 Ky. Law Rep., 815. It appears that the appellee paid appellant this $3,000 in the year 188S. Notwithstanding this payment and the reversal of that judgment in 1891, there is nothing in the record showing any •effort made for the further hearing of the condemnation proceedings, or to obtain another trial before a jury in that case, until at the May term, 1899 — over eight years after the reversal. At that term the appellee produced and filed *495a notice given by it to tbe appellant that it would on the second day of that term move to file tbe mandate of tbe Court of Appeals and redocket that case. This was all that was done at that term, and no motion was in fact made to redocket the case, and the mandate was not in fact filed. This notice was lost, not having been called up, and tbe action of the court obtained thereon, and the matter stood precisely as if no notice to file the mandate or docket the ease had been given. See section 447, Civ. Code, and Foster v. Wade, 4 Metc., 253. At the October term of the same year the court, without any additional notice to the appellant, made an order reciting that the mandate of the Court of Appeals had been theretofore filed, and copied the mandate, and ordered that, in obedience to this mandate,, the judgment for the $3,000 in favor of the .appellant be set aside, and directed the case to be redocketed. The case remained on the docket without action until the October term,. 1902, when a special judge, who had been appointed by the governor, presided in the trial of the case. A jury was impaneled, the appellee introduced its evidence, and the jury returned a verdict allowing appellant only $900 for the damage to his land by reason of the road passing through it. Appellee’s counsel filed an affidavit to the effect that the appellant had been paid by the appellee the $3,000, the-amount of the former judgment, and moved the court for *a*judgment against him for the difference, . $2,100, with interest from the 10th day of August, 1888. The order recited that the motion came on to be heard, and on testimony heard in open court it found that appellee had paid appellant this sum of $3,000, and deducted the $900 that day awarded, and rendered judgment in accordance with the motion. And on that day, and in the same order, the court appointed a special commissioner, who conveyed the *496strip of land taken by the road to the appellee. All of these proceedings were had in the absence of the appellant and his counsel.

Appellee contends that this proceeding is binding upon the appellant because his attorney, a day or two before this judgment was rendered, had stated to the counsel for the appellee that he did not regard this proceeding as regular, and did not intend to pay any attention to it until the time arrived for him to make defense, and then he would do so; and, in addition to this, on the day of the trial, and after the case had been called for trial, the court stopped the proceedings, and sent a special messenger to inform the appellant of the fact that they were about to enter into the trial of his case. Appellant was informed in person by this messenger, and he declined to make his appearance in court.

We are of the opinion that when a case has been stricken from the docket, and especially after it had remained off the docket as long as this one, before it could be reinstated upon the docket by either party a notice should have been served upon the opposite party of the intention to have an order made to that effect. The record does not show, nor is it claimed by the appellee, that any such notice was ever served upon the appellant, except the one referred to, which was lost by the failure to have the court to act upon it. The court erred in rendering judgment against appellant for the $2,100 and its interest, the difference between the two judgments. The court had not the power to render this judgment of restitution on the state of the record. Even if the proceeding was regular with reference to the second assessment of damages by the jury, and the appellant was before the court on that branch of the case, he still was not before the court on this branch of it but would have to be brought before it by rule or direct action *497for the restitution. And, as neither remedy was followed by the court, the action of the court in adjudging restitution in this case was void. There is no pretense that appellant had any notice of any kind or character of this proceeding of restitution. Hays v. Griffith, 85 Ky., 379, 9 R., 65, 3 S. W., 431, 11 S. W., 306.

Wherefore the judgment of the lower court is reversed, and the cause remanded for further proceedings consistent with this opinion, and, appellant having entered his appearance by this appeal, on the return of the case no notice will be necessary for further proceedings on the condemnation proceedings.