Commonwealth, Department of Highways v. American National Bank & Trust Co.

379 S.W.2d 252, 1964 Ky. LEXIS 234

Opinion

DAVIS, Commissioner.

In this condemnation suit the Commonwealth of Kentucky, Department of Highways, appeals from a judgment of the Warren Circuit Court, in which a total award of $2,000 was made, pursuant to jury verdict. The appeal is here pursuant to RCA 1.180 and KRS 21.080.

Appellees have failed to file brief, although extension of time for filing of brief was granted to them. By authority of RCA 1.260 we accept appellant’s statement of the facts and issues as correct. Although we may and do regard appellees’ failure to file brief as their confession of error, we have examined the record and the brief of appellant, and are of the opinion that they reasonably appear to sustain our action in reversing the judgment as excessive and unsupported by evidence of probative value. Commonwealth, Dept. of Highways v. Tyree, Ky., 365 S.W.2d 472; Tennessee Gas & Transmission Co. v. Jackman, 311 Ky. 507, 224 S.W.2d 660.

Upon another trial the court will submit the issue of damages pursuant to the rule announced in Commonwealth, Dept. of Highways v. Sherrod, Ky., 367 S.W.2d 844.

The judgment is reversed for proceedings consistent with the opinion.