* Corpus Juris-Cyc. References: Appeal and Error, 3CJ, p. 862, n. 21; 4CJ, 6. 957, n. 65; Eminent Domain, 20CJ, p. 1126, n. 99. Appellant, the railway company, filed its application with the circuit clerk of Newton county to take, by eminent domain proceedings, the property described. The cause was referred to a justice of the peace, an eminent domain court was organized, and the jury returned a verdict for one hundred seventy-five dollars in favor of Whittle and Chisholm, and found that Thames was not interested in the property; the court thereupon entered a judgment on September 15, 1922. In due time, Whittle and Chisholm filed an appeal bond, and the cause was transferred to the circuit court. At the March, 1927, term, said circuit court proceeded to the trial of this cause on appeal in the absence of the railway company or its counsel, and a verdict was rendered in favor of Whittle and Chisholm for the sum of five hundred dollars from which judgment the railway company appeals to this court. *Page 361
The appellant presents the following reasons for reversal:
(1) Because the attorney for Whittle and Chrisholm, in the presence of the jury, after he had introduced all the evidence as to the value of the property, used the following language:
"Now we could introduce other witnesses to the same effect, but deem it unnecessary. They all go to the same effect.
"The Court: All right; prepare your instructions."
Counsel for the appellant urged that this was prejudicial to the appellant's cause, but recognizes there was no objection and exception made at the time, because the railway company was not represented during the trial.
It is a well-recognized rule that this court does not consider objections of this kind unless raised in the lower court, but this statement was not prejudicial.
(2) Appellant assigns as error that the lower court (the circuit court) "erred in not carrying the jury to the premises sought to be condemned as required by section 1570, Hemingway's 1927 Code."
The trial here under review is a circuit court trial on appeal from a judgment rendered by an eminent domain court organized under our statute. Failure, on the part of the circuit court to have the jury view the premises is the main ground of error assigned on this appeal.
The pertinent part of section 1864, Code of 1906 (section 1570, Hemingway's 1927 Code), reads as follows:
"And the jury shall, unless the parties consent to the contrary, go to the premises, under the charge of the justice and the sheriff, and view the property sought to be condemned and its surroundings, and may examine and measure the same," etc.
It will be noted that this statute applies to the procedure of an eminent domain court, presided over by a justice of the peace. *Page 362
Section 1871, Code of 1906 (section 1577, Hemingway's 1927 Code), or the part thereof relating to appeals from judgments rendered by eminent courts, is as follows:
"Upon appeals, the issues shall be tried de novo in the circuit court, which shall try and dispose of it as other issues, and enter all proper judgments."
The mere statement that the case is to be tried de novo does not refer to a trial in an eminent domain court, but refers to a trial according to the rules of procedure in the circuit court, and this view is strengthened by the fact that the statute provides that the issues shall be tried as other issues are tried; and there would necessarily have to be a clear mandate from the legislature to the circuit court to require it to remove a trial from the appointed place.
The correctness of this view is further sustained by the fact that the eminent domain court, presided over by a justice of the peace, rendered its judgment in September, 1922, and four years later on appeal this case was presented to a jury for trial in the circuit court. Where a corporation is entitled, under the law, as in this case, to pay the amount of the judgment of the eminent domain court to the proper court, and go into possession of the property notwithstanding an appeal, and has done so, a jury four and one-half years later would have very little idea as to the scene that existed at the time of the condemnation of the property by the judgment of the lower court.
There is no merit in the contention that it was mandatory on the circuit court on appeal from the eminent domain court to have the jury view the land sought to be condemned.
Affirmed. *Page 363