Minneapolis, St. Paul, Rochester & Dubuque Electric Traction Co. v. Grimes

An order modifying a judgment based upon a motion made subsequent to the entry of the judgment, and after the judgment has been satisfied of record, is one affecting the substantial rights of the parties, and is appealable under subdivision 7, § 8001, G. S. 1913.

Motion to dismiss appeal denied.

The following opinion was filed on January 29, 1915.

This proceeding was instituted by appellant traction company for the condemnation of certain land for right of way purposes. Commissioners were duly appointed and in and by their report respondent’s damages were assessed , at the sum of $3,250; in addition to which the commissioners imposed as a condition to the right of way granted that the company construct a cattle pass under the *323railroad track, and certain crossings and culverts for the use of respondent. The company appealed from the award, assigning as grounds thereof tbat the damages were excessive, making no specific reference to the conditions imposed by the report. The damages were reduced by the jury in the district court to the sum of $2,500, and the conditions were not referred to in the verdict. In fact the question of the reasonableness of the conditions was not litigated on tbe trial in tbe district court. In tbe memorandum attached to tbe order appealed from tbe trial court so states tbe fact. The verdict was returned on November 22, 1913. Thereafter, on May 9, 1914, tbe company caused judgment to be entered on tbe verdict, for tbe amount thereof with costs, and tbe same was paid on tbat day to tbe attorney for respondent, who in turn executed a formal satisfaction of tbe judgment which was filed with tbe clerk of the district court. Tbe judgment contained none of tbe conditions imposed by tbe commissioners, but was for tbe recovery of tbe damages only. Counsel for respondent discovered this omission on June 16, 1914, and promptly moved tbe court to correct tbe same by including therein tbe conditions so imposed. After bearing tbe parties by their respective attorneys tbe court made an order granting tbe motion. From which order tbe .company prosecuted tbe present appeal.

The report of tbe commissioners embodied two distinct elements: (1) Tbe conditions imposed, namely, tbe construction of tbe culvert and cattle pass; (2) tbe damages suffered by respondent; ' Tbe appeal did not challenge tbe conditions, but tbe award of damages only. Minneapolis, St. P. R. & D. Elec. T. Co. v. St. Martin, 108 Minn. 494, 122 N. W. 452. Not having challenged tbe report of tbe commission as to such conditions they became final, and should have been incorporated in the judgment. Section 5409, G. S. 1913. They were not so incorporated and it clearly was within the power of tbe court to amend tbe judgment so tbat it would conform to what it should have been. 11 Am. & Eng. Enc. (2d ed.) 822, and authorities there cited. Since tbe conditions and damages were separate elements of tbe relief ■ awarded by tbe commissioners it is not important tbat tbe damages have been paid and tbe judgment *324satisfied in this respect. That the court has the inherent power to correct errors and mistakes of this kind is clear. 17 Am. & Eng. Enc. (2d ed.) 818 — 820. The contention of appellant that the question of the conditions, and the fact that they had not been complied with by the company, were matters considered by the jury in fixing the amount of damages is not sustained by the record. The trial court expressed a contrary opinion in the memorandum heretofore referred to, and the record contains no settled case purporting to present the evidence offered and received at the trial, from .which the fact may be determined. In any event it does not appear that the company has in any manner been relieved from compliance with the conditions, and the court below correctly proceeded on the theory that compliance was necessary, in addition to the payment of the damages. It is clear that the appeal from the award, even if construed as including the cattle pass and culvert questions, did not ipso facto nullify the commissioners’ report. On the contrary it remained in full force and effect until vacated by the district court after hearing on the appeal. The force and effect of this part of the report of the commissioners, so far as disclosed by the record, has not yet been called in question.

Order affirmed.