
    Waterman et, Appropriation of, In re: Preston, Director of Highways et., Appellant, v. Waterman et, Appellees.
    Ohio Appeals, Seventh District, Jefferson County.
    No. 1132.
    Decided December 19, 1962.
    
      Mr. Mark McElroy, attorney general, and Mr. Felix Mika, assistant attorney general, for appellant.
    
      Mr. Bernard T. McCann and Mr. Clarence H. Graham, for appellees.
   Brown, P. J.

The trial of this appropriation matter in the court below resulted in a verdict for the property owner in the amount of $162,500.00. Judgment was entered upon the verdict, and thereafter the statutory time for filing a motion for new trial was permitted to pass without such a motion being filed. Still later a motion for new trial and a motion to vacate the judgment were filed by the Director of Highways of the State of Ohio.

The Director of Highways claimed that he had, prior to the trial, settled with the lessee for all of that interest of the lessee and was entitled to credit for the amount paid in settlement as against the judgment.

The court overruled both motions and proceeded at that time to hear evidence of the State with regard to the judgment for the unexpired portion of the lease, and found that such unexpired portion of the lease had no value in excess of the rental expressed in the lease, since that rental was excused by a clause in the lease. The court thereupon ordered payment of the judgment to the property holder.

The motion for new trial was properly overruled since it was not filed in a timely way.

The motion to vacate the judgment was a proper exercise of the court’s discretion, and we find there was no abuse of that discretion.

The matter of apportionment of the amount awarded by the jury in such a case between the landowner and a lessee is a matter in which the State has no interest.

The state at the time of the judgment had two choices: to pay or appeal. In re: Apportionment by Supt. of Public Works: Sowers, Supt., Appellant, v. Schaeffer et al., Appellees, 152 Ohio St., 65; In re Apportionment of Easement for Highway Purposes over property of Moore’s Lime Company, 112 Ohio App., 459.

Since there was no other order made by the court in which the appellant here had any interest none of the other errors assigned and argued have merit. The judgment is affirmed.

Donahue, J., concurs.

France, J., not participating.  