City of Decatur v. Finley

*102 SAXRE, J. The city of Decatur was proceeding to improve one of its highways known as the ‘‘Old Danville Road.” Appellee here appealed from the assessment toy the city council to the circuit couz-t. In the circuit court, the jury impaneled to assess the increased value of appellee’s contiguous property by reason of the improvement, proceeding- according to the court’s instruction, returned a verdict as follows: “We the jury finds for the plaintiff [meaning, as we interpolate, the city] and fix the damages at $3,100.00 principal and $877.30 interest.” The assessment against appellee’s property by the city council on account of the improvement had been $4,937. Upon the verdict, judgment was entered charging appellee’s in-operty with the cost of the improvement in the sum of $3,100 principal, and $877.-30 interest. Subsequently, the court, responding to appellee's motion duly made, ordered that so much of the verdict as added $877.30 Interest to the assessed, value of the improvement of appellee’s property to be set aside and stricken from the verdict, and amended the judgment of condemnation so as to limit the amount thereof to the principal sum found by the verdict of the jury. From this amendment of tlie judgment the city appeals, and, in the alternative, prays for the writ of mandamus to compel the restoration of the item of interest to the judgment against appellee’s property. < When submitting the case to the jury, the court had instructed them, mero motu, that they should add interest to the amount of the increased value of the property [by reason of the improvement] from a time thirty clays after the assessment had been made — meaning made by the city council. There was at the time no objection or exception to this instruction by the court; but, as we have heretofore stated, the court subsequently, on defendant’s motion, struck the item of interest from the judgment. The court erred in its instruction to the jury on the subject of interest. The statute, section 2216 of the Code, provides that an assessment for an improvement of the sort here involved “shall hear interest at not exceeding eight per cent, per annum after the expiration of thirty days from the date on which the same is made final” — meaning, in the circumstances of this case, thirty days from the date of the judgment of the circuit court. It was the duty of the jury, nevertheless, to follow the court’s instruction. Fleming v. L. & N. R. R. Co., 148 Ala. 527, 41 So. 683. Nor would the error have availed defendant anything on direct appeal to this court for the reason that he had not reserved the point. And it has been held, correctly so, no doubt, that the faiizzz-e to reserve an exception to a z-uling- of the trial court, at the proper time, cannot be cured by a motiozz made for a new trial, so as to rezider such ruling revisahle on appeal. McLendon v. Bush, 127 Ala. 470, 29 So. 56; Geter v. Central Coal Co., 149 Ala. 578, 43 So. 367. The reasons for this rale arei obvious. They are that the party shall not be permitted to speculate on the results of the court’s ruling, and that the court may be apprised of the party’s objectiozi at the time a ruling is made and so afforded azz opportunity to correct the same. The z-ule aforestated would conclude defendant property owner, if he were the appellant izi this court. He was the appellant in the circuit court; but there the cause, so far as it involved an assessznent of the! increased value of defendant’s property, was tried de novo, although the burdezz of proof then was made to rest ztpon the appellant property owner. Sloss-Sheffield Co. v. Bizmingham, 201 Ala. 542, 78 So. 896. But in the case presented by this appeal, the trial court coznmitted error in its statemezzt to the jury of the substantive law of the case, and substantially corrected its ez-ror by the elimiziation of the item of interest assessable at the tizne of the trial— an item resting, not upon proof, but upon a fixed rule of law, which zzeither the court nor the parties by any ruling on the one hand, or by any inadvertence or mistake on the other, could change. If the court’s error had been of a sortj to affect any rule of recoverable damages, azzd if damages assessable under such errozieous instruction had entered into the judgment in such way as to prevent their elimination with reasonable certainty, we would agree that the ez-ror could zzot have been cured in the manner adopted by the couz-t in this case. But, as the verdict of the jury made evident ibeyond a doubt, the aznouizt of the increased value of defendant’s property was assessed separately by the jury, nor is any question made as to its correctziess. The item of interest appears in such wise, as to make its elimination possible without affecting in any way the sole meritorious question submitted to the jury, and our opinion is that the court eomznitted, no error in its correction of the .verdict and judgment against defendant appellee. Aifirzned. ANDERSON, O. J., and BROWN and FOSTER, JJ., concur.