Bodley v. Craig

OPINION of the Court, by Judge Trimble.*— This is a writ of error, prosecuted for the itvn-sal ot a judgment rendered on a report ot commissioners made under the act of assembly “ concerning octu-pying claimants of land.” T'C c. . J • rr., . . 1 he hrst error assigned is, “ 1 he commissioners proceeded without notice to the said Bodley (of the time of meeting) or to his agent or his attorney,.and ex parte.'’' I he same point came betore the court in the case oi Estill vs. Willhite, last term, in which it was adjudged ío be a fatal objection, unless it appeared from the re- , , Til 11 • r cord that the party had a reasonable opportunity oi contesting the report, and failed to do so. In the case now before the court, it does not appear that Bodlev, or his , Vr r , - . attorney, was present when the report ot the commissioners was returned, or that he had any reasonable opportunity of objecting to the want of notice in the inte-nor court. It does not appear when the report was made out, or when returned ; and it might have been made, returned, and judgment rendered thereon, on the same day, during the temporary absence of the party, We are therefore of opinion, that this case is fully embraced by the principles laid down in the case of [2] Estill and Willhite, and that the objection must be deem» ed fatal. £Jiill •vi. mi. kite> *--»ar■ 5?,9. Patrick ux. ms lure— fall i8o8. Jo :»f >1 -V!., jD^uejiaU iiorj There are other objections to the report of the com» m'ssioners, which appear to be well founded, and wh;ch are assigned as error. The commissioners have made no specification of the items, or other explanation of the principles by which they ascertained the amount of im-provemenrs made before notice ; and they have not sufficiently ascertained the Value of the land, exclusive of improvements. They should have ascertained the quantity of land, as well as its value per a. re ; otherwise it could not appear to the court whether the value of the improvements (B'ter proper deductions made) exceeded the value of the land or not. Did it appear from the record that the psrtv had an opportunity of malting these objections in the inferior court, an he had failed to do so, they would not he re» yarded in this court: we would presume they were, at the time, waved by' him. But that not appearing, the proceedings must here be deemed erroneous. It is therefore considered, that the said commission» ers’ report, and the judgment rendered thereon, be reversed, anviulled and set aside ; that the cause be remanded to the inferior court, that new proceedings may be had therein as to the ascertaining the value of improvements, rents, 8cc. ; and that the plaintiff in this court recover of the defendant his costs herein expend» ed. Which is ordered. &c.