
    Snyder, v. Board of County Commrs. of Stark County.
    (Decided October 17, 1927.)
    
      Messrs. Lynch, Day, Fimple, Pontius S Lynch, for plaintiff in error.
    
      Mr. Henry W. Harter, Jr., prosecuting attorney, for defendant in error.
   Lloyd, J.

The defendant in error, the board of county commissioners of Stark county, passed the necessary legislation to improve a highway located in Stark county, designated as the Canton-New Franklin Intercounty Highway. This improvement, as planned, required the appropriation of about one-quarter of an acre of a farm owned by tbe plaintiff in error, A. Talmadge Snyder.

Mr. Snyder, being dissatisfied with tbe findings and orders of tbe defendant in error, conformably to tbe statute providing tberefor, filed notice of bis appeal, first, as to tbe compensation for land appropriated; second, as to tbe damages claimed to property affected by tbe improvement; and, third, as to tbe order establishing tbe proposed improvement.

Thereafter, an appeal bond having been given and approved, tbe cause was docketed in tbe probate court. All of tbe preliminary questions and motions on said appeal having been beard and determined, and tbe court finding that tbe appeal bad been properly perfected, a jury was summoned and impan-eled in that court and a trial bad of tbe issues involved.

Upon tbe verdict returned, which related only to tbe amount of compensation awarded Snyder, judgment was entered by tbe probate court. Error proceedings were prosecuted therefrom to tbe court of common pleas, where tbe judgment was affirmed. By these proceedings in error it is sought by plaintiff in error to reverse this judgment so affirmed. He contends that tbe trial judge failed to submit to tbe jury all of the issues required by law tó be submitted, and that tbe jury failed to include in its verdict one of tbe findings made mandatory by statute; and also that tbe court erred in overruling the motion of plaintiff in error for a new trial upon tbe grounds therein set forth, among which is tbe claim that tbe verdict is not sustained by sufficient evidence and is manifestly too small in amount.

Tbe proceedings bad before tbe board of county commissioners and the proceedings on appeal in the probate court are statutory. No pleadings are authorized to be filed in the probate court by any of the interested parties. What the issues shall be and what findings the verdict shall include are definitely fixed by Section 6894-7, General Code. This section provides:

“At the conclusion of the trial, the court shall charge the jury and the jury shall find and return a verdict separately upon each claim for compensation and damages, if a final order or judgment or [of] the county commissioners in reference to compensation and damages be appealed from. The jury shall also determine in their verdict whether the improvement petitioned for or granted will be conducive to the public convenience and welfare,- if an order establishing the proposed improvement or dismissing or refusing to grant the prayer of the petition be appealed from. If a new trial shall not be granted for cause shown, the probate court shall render a judgment in favor of the appellants for the amount of the verdict, if any, returned by the jury in their favor. He shall also make a finding for or against the improvement, based on the verdict of the jury.”

The trial judge in his charge to the jury, and .by the form of the verdict submitted, presented to the jury but one of the issues mentioned in this section, that of compensation and damages, and ignored entirely the issue of “whether the improvement petioned for or granted will be conducive to the public convenience and welfare.” Section 6894-6, General Code, provides that “the parties shall offer their evidence to the jury * * * upon the matters appealed from” and that “the rules of law and procedure governing civil cases in the common pleas court shall apply to the trial of the cause in the probate court,” and, as will be observed above, Section 6894-7 provides that “at the conclusion of the trial” certain specified questions shall be submitted to the jury and certain specified findings shall be made by the jury.

The form of verdict submitted by the trial court to the jury, as is printed thereon, shows that it was intended for proceedings under other sections of the General Code, and although, as we view it, the statute is plain as to how the trial judge shall proceed, he may have been misled by the silence of counsel and the form of verdict used. But silence of counsel will not waive what the statute expressly provides shall be done. Forest City Provision Co. v. Blaha, 18 C. C. (N. S.), 33, 32 C. D., 575.

Not only did the court not submit to the jury the question upon which the statute expressly required a finding by the jury, and a judgment thereon by the court, but in effect charged the jury that it was not in issue, for, in connection with what he had to say as to the compensation and damage, if any, to be awarded, he said, “And the further fact that the county needs it [referring to the land of Snyder] has nothing to do with your finding.”

An appeal having been taken by the defendant in error from all the proceedings had before, and the orders made therein, the statute is mandatory with respect to the issues to be submitted to the jury, the findings which the verdict of the jury shall include, and the character of the judgment to be entered thereon by the court. It does not provide for two trials to determine the questions in issue, but, as is evident, requires all of the issues to be submitted to the one jury impaneled to try the issues involved, and this court is of the opinion that the trial court erred in failing to submit to the jury the omitted question, which the statute requires “the jury shall also determine in their verdict,” based upon which verdict the court “shall also make a finding for or against the improvement.”

A majority of the court being of the opinion that the statute does not authorize or permit separate trials of the issues' involved, but requires that all of them should be submitted together under proper -instructions of the court, the judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed and cause remanded.

Richards, J., concurs.

Williams, J.

I concur in the reversal of the judgment of the courts below upon the ground that the judgment in the court of probate was prematurely entered in that there had been no finding for or against the improvement under Section 6894-7, (General Code, but am of the opinion that the verdict of the jury, finding the amount due for land to be taken for the road improvement, should not be set aside, because it is not erroneous for any reason as to the issues submitted to the jury and is not claimed to be so by counsel, and that the case should be remanded with directions to the trial court to submit to the determination of a jury whether or not the improvement petitioned for will be conducive to the public convenience and welfare, and that upon the return of a verdict of a jury upon that issue the court may then enter such judgment as is warranted by law.

Judges Richards, Williams and Lloyd, of the Sixth Appellate District, sitting in place of Judges Shields, Houck and Lemert, of the Fifth Appellate District.  