Montag v. Lynn

Caton, C. J. The claim for equitable relief in this bill, is founded upon the assumption that the Circuit Court properly refused to appoint commissioners to assess the value of complainant’s improvements, under the 48th section of our ejectment law, when the motion was made for their appointment at the first term of the court after the judgment was affirmed by this court. This assumption we think is not correct. We think that the defendant in ejectment was in time to make the application for the appointment of commissioners at the time he made his motion. This is the part of the section of the law presenting the question: “ The court who shall pronounce and give judgment of eviction, either in law or equity, shall at the time nominate seven fit persons, any five of whom shall have power, and it shall be their duty to go on the premises, and after viewing the same on oath or affirmation, to assess the value of all such lasting and valuable improvements, which shall have been made thereon prior to the receipt of such .notice as aforesaid,” etc. The question is, whether the time here specified for the appointment of commissioners is directory or imperative. We think from the nature of the case it was only designed to be directory, at least where the judgment is appealed to this court, as was the case here. The appeal suspended the operation of the judgment until the case should be decided by this court. No proceedings could be lawfully had under the judgment. Had commissioners been appointed, it is very doubtful whether they could have proceeded in the discharge of the duties specified in the statute, until after the affirmance of the judgment by this court. It is not to be presumed that the legislature designed that the proceedings for the assessment of the value of the improvements should be going on, while the case was pending in this court, where the judgment was liable to be reversed. No benefit could accrue to either party to have the commissioners appointed at that time, rather than at the first term after the judgment was affirmed by this court. While we will not now say that the appointment would have been void if made at that time, we think the more appropriate time was after the affirmance of the judgment, and when the motion for their appointment was made, after due notice had been given to the opposite party. The party had an adequate remedy at law, by bringing to this court the decision of the Circuit Court, refusing to appoint the commissioners, and having it reversed, and then getting commissioners appointed, and having the value of improvements assessed according to law. The decree dismissing the bill must be'affirmed. Decree affirmed.