Imágenes de páginas

to state.

Property to be described.

the court having jurisdiction of the proceedings, a petition signed by him in his official character and duly verified by him; to which petition a certified copy of the resolution of the common council shall be annexed, which certified copy shall be prima facie evidence of the action taken by the common counPetition, what cil and of the passage of said resolutions. The petition shall state, among other things, that it is made and filed as commencement of judicial proceedings by the municipality in pursuance of this act to acquire the right to take private property for the use or benefit of the public, without consent of the owners, for a public improvement, designating it, for a just compensation to be made. A description of the property to be taken shall be given, and generally the nature and extent of the use thereof that will be required in making and maintaining the improvement shall be stated, and also the names. of the owners and others interested in the property, so far as can be ascertained, including those in possession of the premises. The petition shall also state that the common council has declared such improvement to be necessary, and that they deem it necessary to take the private property described in that behalf for such improvement for the use or benefit of the public. The petition shall ask that a jury be summoned and empaneled to ascertain and determine whether it is necessary to make such public improvement, whether it is necessary to take such property as it is proposed to take, for the use or benefit of the public, and to ascertain and determine the just compensation to be made therefor. The petition may state any other pertinent matter or things, and may pray for any other or further relief to which the municipality may be entitled within the objects of this act.

Petition to ask for jury.

Clerk of court to issue summons on

receipt of petition.

Notice to
owners to
be published.

Rights of owners in suits.

SEC. 4. Upon receiving such petition, it shall be the duty of the clerk of said court, to issue a summons against the respondents named in such petition, stating briefly the object of said petition, and commanding them in the name of the people of the State of Michigan to appear before said court, at a time and place to be named in said summons, not less than twenty nor more than forty days from the date of the same, and show cause, if any they have, why the prayer of said petition should not be granted. Such clerk shall also cause to be published in at least one newspaper published in the municipality, a conspicuous notice addressed to all owners of real estate within the assessment district (and which owners shall be designated in this act as the taxpayers) describing such district, and warning and notifying such owners of said proceedings pending in said court, and stating the return day of such summons, and that such owners or taxpayers are at liberty to appear in said proceedings and defend. And all or any of such owners are hereby authorized to make themselves parties to said proceedings by appearing in person or by attorney at any time before the trial herein provided for, and such as appear shall have all the rights of parties respondents at all stages of the proceedings, including the

right to move for a new trial and take appeals; but the rights of those who do not appear shall not be held abridged or impaired by such proceedings any further than would be the case if the right to appear did not exist.

when and by

may order

to appear.

SEC. 5. Said summons shall be served by the sheriff, deputy Summons, sheriff, under sheriff of the county, or by any member of the whom served. metropolitan police of the city of Detroit, at least five days before the return day thereof, upon all the respondents found within the county of Wayne, by exhibiting the original and delivering a copy to each of them. If any respondent who is a resident of the county cannot be found, the summons shall be served by leaving a copy thereof at his or her usual or last place of abode, with some person of suitable age and discretion. If any minor or person of unsound mind is interested in the premises to be taken, service may be made on the guardian of such person, if any, and if there be no guardian, the court may appoint some discreet and proper person to be guardian of such person in such proceedings; any such guardian shall have authority to represent such person in said proceedings. The proceedings to appoint such guardian shall be the same as in other cases provided by statute. If it shall When court appear on the return day of the summons that any respondent respondents cannot be found within the county and has not been served in the manner provided, or is a non-resident, and has not voluntarily appeared, the court may make an order requiring such respondent or respondents to appear and show cause why the prayer of the petition should not be granted on a day to be named in the order, not less than thirty days from the date thereof, and may require that a certified copy of such order be personally served on such respondents wherever found, if practicable, at least six days before the time named in the order for appearance, or the court may make such order for appearance, and require as to any or all such respondents who shall not have been personally served and have not appeared. that service be made by publishing a copy of such order for three successive weeks, at least once in each week, in at least one newspaper published within the municipality, the last publication to be at least six days before the day fixed in the order for appearance. Alias and pluries summons Court may adjourn may be issued, and the court may adjourn the proceedings proceedings. from time to time as there shall be occasion and as in other civil cases. Service of such order for appearance in either mode prescribed shall be sufficient notice of the proceedings to bind the respondents and the property represented by them. The return of the officer upon the summons and an Return of affidavit of the due service or the publication of the order for appearance, if any, shall be filed in the clerk's office before a jury shall be empaneled, and be sufficient evidence of service on the respondents and of the manner of service. And such Notices to be posted. officer shall, at least five days before the return day of the summons, also post up in at least four conspicuous places, within the assessment district, printed notices (which shall


Jury, when and how impaneled,


be supplied by the clerk of said court) to the owners or taxpayers, similar to that provided in section four above, and which notices shall be printed on sheets at least fifteen by twenty inches in size and in large type. Copies of said notice shall be served personally by such officer upon at least three of such taxpayers, if to be found within the county, at least five days before the return day of the summons.

SEC. 6. On the return day of the summons, or on some subsequent day to which the proceedings are adjourned, if no qualifications, sufficient cause to the contrary has been shown, the court shall make an order that a jury be empaneled in the cause. Such jury shall be composed of twelve freeholders of the municipality, and shall be elected and empaneled as follows: The sheriff, under sheriff, or a deputy sheriff of the county shall, on the same day, or at an adjourned day, make a list of twenty-four resident freeholders of said city, and the corporation counsel in person or by an assistant or deputy, and the respondents and taxpayers collectively, shall each have the right to strike six names from the list of persons written down as aforesaid, and subject to objection for cause and peremptory challenges, the twelve persons whose names are left on the list shall compose the jury for the trial of the cause, and shall be summoned to attend at such time as the court shall direct by venire issued by the clerk of the court, and to be served by one of the officers aforesaid. If the respondents neglect or refuse to strike six names from said list, it shall be done by the judge of the court, and in case any of the persons to be summoned cannot be found in the county, or being summoned do not attend, or shall be excused for cause, or otherwise, talesmen possessing the necessary qualifications may be summoned as jurors in the case, by such sheriff or sheriff's officer, or authorized person, and the practice and proceedings under this act, except as herein provided, relative to empaneling, summoning and excusing jurors and talesmen, and imposing penalties or fines upon them for non-attendance, shall be the same as the practice and proceedings of the circuit court of the State relative to petit jurors in civil cases in such courts. No person shall be qualified to act as juror under this act who shall have served as a juror in any court of record in said county within two years next preceding the time of empaneling such jury. The city on one side and the respondents and taxpayers on the other shall have the right to challenge peremptorily three persons called to serve as jurors in each such proceeding; in the discretion of the judge of said court the number of peremptory challenges may be increased to not exceed ing six on each side.

Form of oath.

SEC. 7. The jurors so empaneled shall be sworn or shall affirm in substance as follows: "You do solemnly swear (or affirm) that you will well and truly ascertain and determine whether there is a public necessity for making the proposed improvement and for taking for the use or benefit of the public the private property which the petition describes and prays


may be taken, and if you shall determine that it is necessary to make such improvements and to take said property, that then you ascertain, determine and award a just compensation to be made therefor, and faithfully and impartially discharge all other duties as devolve upon you in this case, and unless discharged by the court a true verdict give according to law and the evidence, so help you God (or under the pains and penalties of perjury)." The jury shall hear the proofs and Powers and allegations of the parties, and if so ordered by the court shall go to the place of the intended improvement, in the charge of an officer, and upon or as near as practicable to any property proposed to be taken, and examine the premises. They shall be instructed as to their duties and the law of the case by the judge of the court, and shall retire under charge of an officer, and render their verdict in the same manner as on the trial of an ordinary civil case, but the same shall be in writing, and shall be signed by the foreman of or by all the jurors.

termine in

SEC. 8. The jury shall determine in their verdict the neces- What to desity for the proposed improvement and for taking such private verdict. property for the use or benefit of the public for the proposed improvement, and in case they find such necessity exists, they shall award to the owners of such property and others interested therein such compensation therefor as they shall deem just. If any such private property shall be subject to a mortgage, lease, agreement or other lien. estate or interest, they shall apportion an award to the parties in interest such portion of the compensation as they shall deem just.

petition, map,

SEC. 9. To assist the jury in arriving at their verdict, the To be given court may allow the jury when they retire to take with them etc. the petition filed in the case and a map showing the location of the proposed improvement, and of each and all the parcels. of the property to be taken, and may also submit to them a blank verdict which may be as follows:



We find that [it] is.... necessary to take the private property Form of blank described in the petition in this cause for the use and (or) benefit of the public for the proposed public improvement.


The just compensation to be paid for such private property we have ascertained and determined and hereby award as follows:

Description of each of the several parcels private property to be taken.

Owners, occupants
and others inter-
ested in each


To whom payable.

Verdict may be set aside and new trial ordered.

When verdict to be final.

How appeals

The different descriptions of the property and the names of the occupants, owners and others interested therein may be inserted in said blank verdict, under the direction of the court, before it is submitted to the jury, or it may be done by the jury.

SEC. 10. The verdict of the jury may be set aside by the court and a new trial ordered as in civil suits at law in the circuit courts of this State. Amendments either in form or substance may be allowed in any paper, petition, process, record or proceedings, or in the description of the property proposed to be taken, or the name of any person, whether contained in the resolution passed by the common council or otherwise, whenever the amendment will not interfere with the substantial rights of the parties. Any such amendment may be made after. as well as before, judgment confirming the verdict of the jury.

SEC. 11. Motions for a new trial or to arrest the proceedings shall be made within two days after the rendition of the verdict, unless further time is allowed by the court; and if no such motion is made, or, being made, is overruled, the court shall enter an order or judgment confirming the verdict of the jury; and such judgment or confirmation, unless reversed by the supreme court, shall be final and conclusive as to all persons interested therein.

SEC. 12. Any person whose property may be taken (and may be taken. any such taxpayer, party to the proceedings under this act), considering himself aggrieved, may appeal from the judgment of the court confirming the verdict of the jury, by filing in writing, with the clerk of said court, a notice of such appeal within five days after the confirmation, and within the same time serving a copy thereof on the corporation counsel and filing a bond in said court, to be approved by the judge thereof, conditioned for the prosecution of said appeal to judgment. and the payment of all costs, damages and expenses that may be awarded against him in case the judgment or confirmation shall be affirmed. Such appeal shall be perfected within the same time and prosecuted as an appeal in chancery, as near as may be, subject to the provisions of this act.

Duty of

clerk of court in case of appeal.

Duty of supreme court.

SEC. 13. In case of such an appeal, the clerk of the court, on payment of his legal fee and charges, shall transmit to the supreme court a certified copy of the necessary files, records and proceedings in the case, and the judge of the court shall, at the request of the appellant, settle a case according to the usual practice of said court, showing the material evidence and instructions given to the jury, bearing upon any disputed points to which exception was taken, and the objections, rulings and exceptions in the case, all of which shall be returned by said clerk as part of the records to the clerk of the supreme court.

SEC. 14. The said appeal may be brought on for hearing at any term of the supreme court, and the said court may affirm, or, for any substantial error, reverse the judgment,

« AnteriorContinuar »