Southern Railway Company v. Postalco

• Decision Date: 07 January 1901
• Docket Number: TELEGRAPH-CABLE,No. 64,64
• Parties: SOUTHERN RAILWAY COMPANY, Plff. in Err. , v. POSTALCO
• Court: U.S. Supreme Court

179 U.S. 641

21 S.Ct. 249

45 L.Ed. 355

SOUTHERN RAILWAY COMPANY, Plff. in Err.,

v POSTAL TELEGRAPH-CABLE CO.

No. 64.

Argued November 2, 1900.

Decided January 7, 1901.

This was a proceeding commenced by the Postal Telegraph-Cable Company (hereinafter called the telegraph company) against the Southern railway Company (hereinafter called the railway company) to acquire by condemnation the right to construct its telegraph line along and over the railway company's right of way through the state of North Carolina. The petition therefor was filed by the telegraph company in the office of the clerk of the superior court of Guilford county, North Carolina, on June 11, 1898. A summons was issued requiring the railway company to appear before the clerk of the superior court on June 22, 1898, and answer. On that day the railway company entered a special appearance and filed a petition and bond for the removal of the case to the United States circuit court for the western district of North Carolina. Sundry proceedings were had in that court, such as a motion to remand, which it is unnecessary to notice. On August 31, 1898, the telegraph company by leave filed an amended petition. On September 15, 1898, the court made an order by which it directed its clerk to appoint three commissioners to assess damages and prescribed their powers and duties. On September 19, 1898, the clerk appointed the commissioners as directed, and fixed the time and place for their meeting, and on the same day issued a notice to the railway company of his action. These orders were made on the application of the telegraph company and without notice to the railway company. Thereupon the railway company moved the court to set aside its order of September 15 and for leave to answer. On September 23 the court temporarily suspended the order of September 15. On October 24 an answer was filed, a demurrer of the telegraph company was sustained, and when the railway company asked leave to introduce testimony sustaining the averments of its answer the court overruled the application and refused to permit the railway company to introduce testimony, and so far as was needed reinstated its order of September 15, 1898. Before any further proceedings and without waiting for the assessment of damages by the commissioners and the confirmation of their award by the court, a writ of error and supersedeas was obtained by the railway company, and the case was transferred under such writ of error to the circuit court of appeals for the fourth circuit. That court, on March 31, 1899, dismissed the writ of error for want of jurisdiction, on the ground that no final order had been entered in the circuit court. 35 C. C. A. 366, 93 Fed. Rep. 393. To review this ruling this writ of error was sued out.

Messrs. A. L. Holladay and Robert Stiles for plaintiff in error.

Mr.J. R. McIntosh for defendant in error.

Mr. Justice Brewer delivered the opinion of the court:

The single question we deem it necessary to consider is whether a final judgment or order had been entered by the circuit court which could be taken by writ of error to the circuit court of appeals.

Luxton v. North River Bridge Co. 147 U. S. 337, 341, 37 L. ed. 194, 196, 13 Sup. Ct. Rep. 356, is decisive of this question. Indeed, little more seems necessary than a reference to the opinion in that case. There, as here, in condemnation proceedings, an order was made appointing commissioners to assess damages. To reverse this order a writ of error was sued out, and by that writ of error an attempt was made to challenge the constitutionality of the act authorizing the condemnation, but this court dismissed the writ on the ground that the order was not a final judgment, saying, after referring to possible proceedings in the state court, that the action of the United States circuit court could be reviewed here 'only by writ of error, which does not lie until after final judgment disposing of the whole case and adjudicating all the rights, whether of title or of damages, involved in the litigation. The case is not to be sent up in fragments by successive writs of error. Act of September 24, 1789, chap. 20, § 22; 1 Stat. at L. 84, chap. 20; Rev. Stat. § 691; Rutherford v. Fisher, 4 Dall. 22, 1 L. ed. 724; Holcomb v. McKusick, 20 How. 552, 554, 15 L. ed. 1020, 1021; Louisiana Nat. Bank v. Whitney, 121 U. S. 284, 30 L. ed. 961, 7 Sup. Ct. Rep. 897; Keystone Manganese & Iron Co. v. Martin, 132 U. S. 91, 33 L. ed. 275, 10 Sup. Ct. Rep. 32; McGourkey v. Toledo & O. C. R. Co. 146 U. S. 536, 36 L. ed. 1079, 13 Sup. Ct. Rep. 170.'

Reference is made by counsel to Wheeling & B. Bridge Co. v. Wheeling Bridge Co. 138 U. S. 287, 34 L. ed. 967, 11 Sup. Ct. Rep. 301, in which this court sustained its jurisdiction of a writ of error to the supreme court of appeals of West Virginia, and inquired into the validity of a judgment of that court affirming an order of a trial court appointing...