ZUCCARO, JUSTICE, FOR THE COURT:
H. B. Hudspeth appeals from a judgment of $6,750.00 entered in his favor in a special court of eminent domain of Leake County, Mississippi. Hudspeth assigns the following as error:
I. THE TRIAL COURT ERRED IN RULING THAT APPELLANT WOULD NOT BE ALLOWED TO CALL THE COURT APPOINTED EXPERT APPRAISER AS A WITNESS DURING THE TRIAL OF THE CASE.
II. THE COURT ERRED IN ENTERING ITS ORDERS OF DISCOVERY DATED NOVEMBER 6, 1985 AND JUNE 11, 1986 BECAUSE THE ORDERS DENIED THE APPELLANT THE RIGHT OF DISCOVERY PROVIDED BY THE MISSISSIPPI RULES OF CIVIL
III. THE COURT ERRED IN OVERRULING THE APPELLANT'S MOTION TO STRIKE THE AMENDED STATEMENT OF VALUES FILED BY THE STATE HIGHWAY COMMISSION OF MISSISSIPPI.
Condemnation of a tract of land approximately 964.2 feet along the south right-of-way boundary of Highway 16 and an average width of approximately 30 feet and containing 74/100ths or .74 acre was sought by the Highway Commission in a Special Court of Eminent Domain. After filing its application on August 29, 1985 the commission filed a statement of values on October 3, 1985. The statement of values set forth that the fair market value on the date of the filing of the petition was $4,020.00, that damage to the remainder was $1,650.00, that total compensation due to the appellant landowner was $5,670.00. The statement of values further set forth that the elements of damage were severance and temporary easement and that the highest and best use was multi-family residential.
The court appointed Earl L. Locke as the court appointed appraiser to conduct an appraisal of the property to be condemned pursuant to Miss. Code Ann. 11-27-81 et seq. (1972) (as amended). E. L. Locke appraised the subject property and ascertained that the total compensation and damages due for the taking of Hudspeth's property was $5,000.00.
On October 11, 1985, H. B. Hudspeth propounded his first request for production and first set of interrogatories. Then on October 24, 1985, Hudspeth noticed a deposition pursuant to Miss. Rule of Civ. Pro. 30(b)(6) to depose the State Highway Commission. The Highway Commission filed its response to Hudspeth's request for the aforementioned discovery, including the 30(b)(6) deposition, wherein it stated that the facts and information sought were not lawfully discoverable but were available to Hudspeth through his own independent research and investigation. The Highway Commission then sought a protective order pursuant to Miss. Rule of Civ. Pro. 26(d) arguing simply that the matters sought are not discoverable and that it would be prejudiced if it produced these matters. Following a motion to compel by Hudspeth, the trial court entered its order of discovery requiring that the Highway Commission comply with certain requests of Mr. Hudspeth.
On November 1, 1985, Hudspeth filed his statement of values setting forth that the fair market value of the property to be condemned on the date of filing was $20,000.00, the damages to the remainder was $10,000.00, the total compensation due to the defendant, Hudspeth, was $30,000.00. The statement of values also set forth that the elements of damage were severance damages, damages caused by separation and damages to the property caused by reduction in the depth of the lot and access to the highway. Hudspeth declared that the highest and best use was for multi-family residential.
On March 26, 1986, the Highway Commission filed an amended statement of values. The amended statement of values set forth that the amended fair market value of the subject property was $3,265.00 on the date the petition was filed, the damage to the remainder was $400.00, and that the amended total compensation due to Hudspeth was $3,665.00. The amended statement of value further set forth that the element of damage was severance and the highest and best use was single family residential.
On June 23, 1986, the day the case was set for trial and three months after the Highway Commission filed its amended statement of values, Hudspeth filed a motion to strike the amended statement of values. The trial court overruled the motion to strike based upon a lack of a showing of prejudice and because the motion was not timely filed. The jury heard testimony and returned a judgment for appellant for $6,750.00. From this judgment Hudspeth appeals.
I. DID THE TRIAL COURT ERR IN RULING THAT HUDSPETH WOULD NOT BE ALLOWED TO CALL THE COURT APPOINTED EXPERT APPRAISER AS A WITNESS DURING THE TRIAL OF THE CASE?
The trial of the case sub judice took place on June 23, 1986. The appellant, Hudspeth, attempted to call the court appointed appraiser as a witness in the case. Pursuant to Miss. Code Ann. 11-27-89 (1972), the trial court denied the appellant's request to call the court appointed appraiser as a witness.
Miss. Code Ann. 11-27-89 (1972), effective May 10, 1972, provides in pertinent part:
The report of the [court appointed] appraiser will not be admissible in evidence during the trial of the eminent domain case, and no person serving as an appraiser pursuant to section 11-27-83 shall be
eligible to testify in said trial.
This statute is unambiguous and the meaning is clear. The purpose behind not allowing the court appointed expert to testify is to prevent a jury from looking upon such testimony with a higher degree of trust and considering such testimony to be more credible since the appraiser was appointed by the court. The only purpose of the report of the court appointed expert appraiser is to determine the value of the property to determine the amount of money the Highway Department should put on deposit with the clerk of the court pursuant to Miss. Code Ann. 11-27-85 (Supp. 1988).
The appellant relies on the Mississippi Rules of Evidence to argue that Miss. Code Ann. 11-27-89 (1972) has been repealed. These Rules were adopted January 1, 1986 and were therefore in effect at the time of the trial in the instant case. Rule 101 of the Miss. R. of Evid. provides that the Rules apply to all proceedings in the courts in this State that do not fall into an exception stated in Rule 1101. After considering Rule 1101, we find that Eminent ...