
    QUESTIONS ON RE-EXAMINATION AS TO VALUE OF LAND CONDEMNED.
    [Hamilton County Circuit Court.]
    The Covington & Cincinnati Bridge Company v. George A. Magruder et al.
    Decided, June 16, 1906.
    
      Eminent Domain—Withdrawal of Award by Land Owner—Not Prejudicial to Second Nearing as to Value of Land Taken, When— Retention of Cause in Common Pleas—Upon Reversal of Judgment of Probate Court—Discretion—Error—Section 6438.
    1. A company which has appropriated land and paid into court the amount of compensation fixed therefor, under a stipulation that the money can be withdrawn by the land owner without prejudice to any other rights, may be required in the discretion of the court to go into a second trial as to the value of the land without a refunder of the first award.
    2. Under the rulings of the Supreme Court in this case (63 O. S., 455, and 69 O. S., 372), the trial court did not err in refusing to consider the errors assigned upon the first proceedings in error, and in failing and refusing to set aside the first judgment, and in failing and refusing to affirm the judgment of the probate court.
    Jelke, J.; Swing, J., and Giffen, J., concur.
    Hearing on review of proceedings in condemnation.
    We find no error in the action of the trial court in the second proceedings in requiring the plaintiff in error to proeeed to a hearing and trial without requiring a refunder of the amount of the first award withdrawn from the depository of the court. This withdrawal had been made under a stipulation by the parties that it was to be without prejudice to any other rights. The Covington & Cincinnati Bridge Company had ceased to pay rent under the lease, and were in possession of the premises, practically as the absolute owner in fee simple, and said bridge company was satisfied to let the award made theretofore in the probate court stand and was endeavoring to preserve that award and prevent a re-examination in the court of common pleas of the question as to the amount of compensation to be paid to Magruder and others. It is true that there was an apparent inconsistency on the part of Magruder and others in holding on to this money, and at the same time insisting upon a re-examination of the question as to how much .they were entitled to, and yet they stated that in the event of, a smaller award they stood ready and were able to refund the difference.
    We think that this was á matter largely addressed to the discretion of the court, and in all events was a matter which could be provided for in the court’s judgment when the amount of the award had once been finally fixed. Further, even if there were any error in this regard, it turned out to be without prejudice, because the award of the jury was largely in excess of the amount so withdrawn from the depository, if the proceedings leading up to said award were without error.
    If then we find no error in the second proceedings in submitting this question to the jury, there will be no error in requiring the plaintiff in error to proceed to a hearing without requiring such refunder.
    The trial court did not err in refusing to consider the errors assigned upon the first proceedings in error, and in failing and refusing to set aside the first judgment, and in failing and refusing to affirm the judgment of the probate court. It is plain from the language of the opinions of the Supreme Court in the case of The Covington & Cincinnati Bridge Co. V. Magruder, 63 O. S., 455, and The State, ex rel, v. The 
      
      Judges of the Court of Common Pleas of Hamilton County, Ohio, 69 O. S., 372, particularly at page 378, where the Supreme Court says that when it remanded the cause to the court of common pleas for trial as provided by law, it meant the provision of law contained in Section 6438, which provides that if the court of common pleas upon the hearing of the cause reverses such judgment, it shall retain the cause for trial and final judgment. We think that the trial court below followed the instructions of the Supreme Court and did right in this regard. The trial in other respects was routine and the questions as to value, stereotyped.
    We find no error in the special charges or the charge of the court; neither was any error in this regard strenuously urged at the argument. The court did not err in overruling the motion for a new trial. Plaving disposed of all the questions antecedent to the trial to the jury below, we find no prejudicial error in the trial to the jury, and are therefore of the opinion that the judgment of the court of common pleas should be affirmed.
    
      Maxwell & Ramsey, for plaintiff in error.
    
      Harmon, Colston, Goldsmith & Hoadly, Harper & Allen and Richards & Richards, contra.
     