New Orleans, Mobile & Chattanooga Railroad v. Bougere

Taliaferro, J. This is a suit for the expropriation of property. Proceedings purporting to have been taken under the provisions of an act of the Legislature, approved nineteenth of August, 1868, are shown by the record. We find that a judgment was rendered in con *804 formity with the report of commissioners appointed to assess the damages sustained by the defendant, who seems to have acquiesced in. the decree of the court. But the plaintiff appealed, and he complains that'after the report of the commissioners was returned he was allowed no opportunity to oppose it and show that the award rendered by ths commissioners is excessive and exorbitant in amount". This allega1 ion seems to he sustained by the evidence in the record. The commissioners’ report was filed in court on the seventh of March, 1871. On the third of April, the plaintiff’s attorney being absent, an order was rendered, on motion of the defendant’s counsel, fixing the cause for trial on the sixth of April. On that day a rule was taken on the plaintiff to show cause why the report of the commissioners should not be homologated. Nothing shows that the plaintiff had notice of the rule in any manner. An order was rendered on the same day, making it absolute, and the judgment thereupon was rendered. We think the proceeding inegular. Having taken a rule upon the plaintiff to showcause why the report of the commissioners should not be made the judgment of the court, it was incnmbent upon the defendant to have it served upon the plaintiff that he might interpose objections, if he had any. It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed. It is further ordered that this case be remanded for service of the rule to show causo and for further proceedings according to law, the defendant.and aDpellee paying costs of this appeal.