I am unable to concur in the conclusion, that the judgment in this case must be reversed because the trial court excluded from the evidence the judgment of the District Court in the case of S.A. Needham et al. v. E.S. Day, which was a suit to try the title to one of the tracts of land — the Wallace survey — through which appellant seeks to condemn the right of way for its railway.
The petition filed by appellant to condemn this right of way through the Wallace survey instituted proceedings against all the parties to the suit to try title, alleging, that they claimed adverse interests, that the *Page 358 suit was still pending, and praying that the damages be assessed and deposited in court to await the final determination of that suit, to be distributed as their interests might appear on such final determination. This proceeding and that to condemn the right of way over the Hallmark survey (in which E.S. Day was the sole defendant) were consolidated and tried together in the County Court, without objection; Day alone of the defendants having appeared before the commissioners and in the County Court to claim damages. While the record does not affirmatively show legal service on Needham and others, the report of the commissioners recites that all parties had due notice, judgment was entered against them in the County Court, the appeal bond was made payable to them as well as to Day, and appellant and appellee Day have treated them as parties to the proceedings throughout; appellant admitting, in its motion for new trial in the County Court and in its brief in this court, that they were made parties to the proceedings, and the question of their not being parties is raised for the first time by this court. In this state of the record, it seems to me, appellant should not be heard to complain if we should treat them as parties to the condemnation proceedings and bound thereby.
I am further of opinion, that it was the duty of appellant, if it desired protection against paying the damages twice, to see that they were properly before the court before proceeding to have the damages assessed. Day was in possession of the land, as alleged by appellant, and entitled to receive the damages, in the absence of other claimants. It is contrary to the very theory on which condemnation proceedings are founded, the scope of which is to show the necessity for the taking of land for public use and to assess the damages incident thereto, to permit the party condemning to dispute the title of him against whom the proceeding has been instituted.
It results then, that if Day only had been a party defendant, appellant could not wholly dispute his title by introducing a judgment divesting him of all title, and at the same time maintain a proceeding against him founded upon the assumption of some title at least. If, on the other hand, Needham and others were made parties, as both appellant and appellee concede, it results that they are bound by the judgment of condemnation, and that it does not lie in the mouth of appellant to complain of the exclusion of evidence bearing alone upon the question of the disposition to be made of the damages; Needham and others not having complained, but acquiesced in the judgment awarding all the damages to appellee Day. It was immaterial to appellant who received the damages, just so all parties were bound by the judgment of condemnation.
Besides, it would seem there was no technical error even in excluding the judgment, if it be deemed final, as seems to be held by the majority, because there was no allegation of a final judgment, but only of pending *Page 359 litigation. If we might take into consideration the fact, officially known to us, that this judgment has been reversed by this court, it would seem to be a useless thing to remand the cause for a new trial to admit evidence which the judgment of this court has already destroyed. In support of some of the views expressed above, see Lewis on Eminent Domain, paragraphs 426, 440, 441, 442.
My conclusion is, that we should not, as held by the majority, reverse the judgment and remand the cause for a new trial. The consolidation of the two condemnation proceedings, in one of which Day alone was interested, procured, or at least acquiesced in, by appellant, would seem to preclude it from having a modification of the decree so as to have the damages retained in court to abide the final determination of the suit to try the title to the land.