142 F.2d 781 (7th Cir. 1944), 8500, United States v. Catlin

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Citation142 F.2d 781
Date02 June 1944
Docket Number8500.

Page 781

142 F.2d 781 (7th Cir. 1944)



CATLIN et al.

No. 8500.

United States Court of Appeals, Seventh Circuit.

June 2, 1944

Page 782

R. H. McRoberts, of St. Louis, Mo., and George D. Burroughs, of Edwardsville, Ill., for appellants.

Howard L. Doyle and Mark Alexander, U.S. Atty., both of Springfield, Ill., George R. Schwartz, Department of Justice, of Jerseyville, Ill., and Norman M. Littell and Vernon L. Wilkinson, Department of Justice, both of Washington, D.C., for appellee.

Before MAJOR, KERNER, and MINTON, Circuit Judges.

MAJOR, Circuit Judge.

This is a condemnation proceeding instituted by the government March 31, 1942. The petition was filed under the Act of August 18, 1890, as amended, 50 U.S.C.A. § 171, and the Appropriations Act of December 17, 1941, 55 Stat. 810. It was alleged that the land to be condemned was 'needed for the site, location, construction and prosecution of works for fortifications, ' and that the necessary funds had been appropriated. At the government's request, an order of immediate possession was entered on the day of the filing of the petition, and thereafter the War Department took such possession and commenced the construction of an Army Engineer Depot.

On November 12, 1942, a Declaration of Taking was filed, pursuant to the Declaration of Taking Act of February 26, 1931, 40 U.S.C.A. § 258a, in which appellants were named as the purported owners. The court on the same date entered a judgment or order decreeing that title to the lands described in such Declaration had vested in the United States upon the filing of such Declaration, and that 'the right to just compensation for the same is now vested in persons entitled thereto. ' On November 30, 1943, the District Court denied appellants' motion to vacate the judgment entered November 12, 1942 on the Declaration of Taking, and to dismiss the petition in condemnation on the ground that the requisite jurisdictional facts and statutory authority had not been sufficiently alleged.

This appeal is from the judgment on the Declaration of Taking and from the order of November 30, 1943 denying appellants' motion to vacate such judgment and to dismiss the condemnation petition.

Two issues are presented for decision, which, stated in the order of their importance, are:

(1) Whether this court has jurisdiction of the appeal. This depends upon whether the judgment appealed from is final within the meaning of Sec. 128(a) of the Judicial Code as amended, 28 U.S.C.A. § 225(a).

(2) Whether the condemnation proceeding was authorized by the statutory provision upon which it was predicated. If the first issue is determined adversely to appellants, it will be unnecessary to consider the second issue.

Under a long line of authorities, it has been held that a condemnation proceeding is not reviewable 'until after final judgment, disposing of the whole case, and adjudicating all the rights, whether of title or damages, involved in the litigation. The case is not to be sent up in fragments * * * .' Luxton v. North River Bridge Co., 147 U.S. 337, 341, 13 S.Ct. 356, 358, 37 L.Ed. 194; Southern Ry. Co. v. Postal Telegraph Co., 179 U.S. 641, 643, 21 S.Ct. 249, 45 L.Ed. 355; Grays Harbor Co. v. Coats-Fordney Co., 243 U.S. 251, 256, 37 S.Ct. 295, 61 L.Ed. 702 (and many other cases which could be cited). On the authority of these cases, we think there is no question but that the part of the judgment appealed from which denied appellants' motion attacking

Page 783

the sufficiency of the complaint was not final and, therefore, not subject to review. In fact, this court so held in Dieckmann v. United States, 7 Cir., 88 F.2d 902. It has recently been held that the denial of a challenge to the validity of an indictment lacks finality so as to give an appellate court jurisdiction to review. Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 30, 63 S.Ct. 938, 87 L.Ed. 1185. By the same token, the court's denial of appellants' challenge to the sufficiency of the complaint is not reviewable.

It is contended, however, that the judgment on the Declaration of Taking which vested title in the government is final, and that such judgment is an exception to the general rule as to finality in a condemnation proceeding. A number of courts have considered this question and appear to be in rather hopeless conflict. Appellants rely upon the decisions of three circuits as sustaining their position. City of Oakland v. United States, 9 Cir., 124 F.2d 959; United States v. 243.22 Acres of Land, 2 Cir., 129 F.2d 678; and Puerto Rico Ry. Light & Power Co. v. United States, 1 Cir., 131 F.2d 491. The Oakland case...

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