BILES v. OKLAHOMA GAS AND ELECTRIC COMPANY

BILES v. OKLAHOMA GAS AND ELECTRIC COMPANY
1956 OK 84
294 P.2d 817
Case Number: 37184
Decided: 03/13/1956
Supreme Court of Oklahoma

LEE BILES, A WIDOWER, PLAINTIFF IN ERROR
v.
OKLAHOMA GAS AND ELECTRIC COMPANY, A CORPORATION, DEFENDANT IN ERROR

Syllabus by the Court.

¶0 Where there is no objection by the condemnee to the taking of the property in a condemnation proceeding except as to the value thereof an order of the trial court relating to the appointment and report of the commissioners prior to a final determination of the value of the property is not such an order as may be brought to this court for review until there has been a final judgment or disposition of the case in the trial court.

Appeal from the District Court of Oklahoma County; A.P. Van Meter, Judge.

Proceeding in condemnation by Oklahoma Gas and Electric Company, a corporation, plaintiff, against Lee Biles, defendant. From an order of the trial court approving the report of the commissioners defendant appeals. Dismissed.

Harry James, Oklahoma City, for plaintiff in error.

Houston W. Reeves, Oklahoma City, for defendant in error.

BLACKBIRD, Justice.

¶1 This proceeding was commenced by the Oklahoma Gas and Electric Company in condemnation to obtain possession and title to certain real property in Oklahoma County. The trial court appointed three commissioners and on October 11, 1955, they filed a report in which it was stated that they were unable to agree as to the value of said property. Thereafter a second report was made fixing the value of the property at $17,500. The defendant filed a motion to disqualify the commissioners and set aside the commissioners' report, alleging irregularity in said report, and asked that the commissioners be discharged and new commissioners appointed. The trial court, on November 23, 1955, overruled the motion of the defendant.

¶2 The order is as follows:

"On this 23rd day of November, 1955, there came on
for hearing the motion of the defendant here for the
Court to review, reject both of the appraisors'
reports, and appoint new appraisors, plaintiff
being present by its attorney, Houston Reeves, and
the defendant by his attorney, Harry James. The
court, having heard the arguments of counsel, upon
consideration finds that the said motion should be
overruled.

"It is therefore ordered and adjudged that the
motion of the defendant for the Court to review,
reject both of the appraisors' reports and appoint
new appraisors be, and the same is hereby
overruled; to which ruling the defendant then and
there excepted, and gave notice in open court of its
intention to appeal to the Supreme Court of the State
of Oklahoma, and requested that same be noted on the
trial docket which was so ordered."

¶3 Defendant appeals from this order. The plaintiff has filed a motion to dismiss. The motion must be sustained. In Owens v. Oklahoma Turnpike Authority, Okl., 283 P.2d 827, 828, the condemnees appealed from the order setting aside the report of the commissioners and appointing new commissioners. Therein it is stated:

"An order setting aside the report of commissioners
in condemnation proceedings, and directing a new
appraisement is interlocutory and not final, and an
appeal will not lie therefrom."

¶4 In City of Eufaula v. Ahrens, 58 Okl. 180, 159 P. 327, 328, this court held that an order setting aside the report of the commissioners and appointing new commissioners was an interlocutory order. In discussing the order this court stated:

"* * * The right of appeal in this character of
proceeding is granted by section 1403 [66 O.S. 1951 _
56 [66-56]] and an examination of its language convinces us
that it contemplates a final disposition of the
proceeding; for it is provided in that section that
such review or appeal shall not delay the prosecution
of the work of the corporation over the premises
sought to be condemned, in the event such corporation
shall pay to the owner of the property taken the
amount awarded by the report of the commissioners or
shall deposit said amount with the clerk of the
district court, or, in the event trial is had to a
jury, shall pay or deposit the amount awarded by the
verdict of the jury."

¶5 In Oklahoma City Land & Development Co. v. Patterson, 73 Okl. 234, 175 P. 934, we said:

"An appeal does not lie to this court from an
intermediate or interlocutory order made during the
pendency of an action, which intermediate or
interlocutory order leaves the parties in court to
have the issues tried on the merits, unless the
appeal sought to be taken comes within some one of
the special orders from which an appeal is authorized
by statute prior to final judgment in the main
action."

See, also, Attaway v. Watkins, 171 Okl. 102, 41 P.2d 914.

¶6 We therefore hold that where there is no attack upon the right to take the property and the objection is to the assessment of the value of the property an order made by the trial court in a proceeding on the appointment and report of the commissioners is not a final order and cannot be brought to this court prior to a final determination of the proceeding.

¶7 Appeal dismissed.