Dieckmann v. United States
| Decision Date | 16 February 1937 |
| Docket Number | No. 5942.,5942. |
| Citation | 88 F.2d 902 |
| Parties | DIECKMANN et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Andrew W. Kops and R. E. Noelker, both of Batesville, Ind., for appellants.
Harry W. Blair, Asst. Atty. Gen., Val Nolan, U. S. Atty., of Indianapolis, Ind., and Ralph S. Boyd, Sp. Atty., Department of Justice, of Washington, D. C., for the United States.
Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge.
This is an appeal from an order of the District Court overruling appellants' objections to the complaint and appointing appraisers for the assessment of damages to their land. The action involved was a condemnation proceeding with respect to land for use in connection with a demonstration recreational project alleged to be authorized by title 2 of the National Industrial Recovery Act, 48 Stat. 195 (section 201 et seq., 40 U.S.C.A. § 401 et seq.), and Executive Orders issued thereunder.
We are first confronted with appellee's motion to dismiss the appeal on the ground that it is not from a final order as contemplated by section 128 of the Judicial Code, as amended, 28 U.S.C.A. § 225.
No question is raised as to the government's right to exercise the power of eminent domain for all purposes set forth in the National Industrial Recovery Act, which are consonant with the Constitution, and it is conceded that if the purpose here involved is of that character and is within the purview of that Act, the right of eminent domain with respect to appellants' land, which lies in Indiana, must be exercised as near as may be, in conformity to the laws of that state, 40 U.S.C.A. § 258.
The pertinent sections of the Indiana statute are found in Burns' Annotated Statutes 1933, § 3-1705 (7684) et seq. This statute provides that any defendant may object in writing to such proceedings on the ground that the court has no jurisdiction either of the subject matter or of the person, or that the plaintiff has no right to exercise the power of eminent domain for the use sought, or for any other reason disclosed in the complaint or set up in such objections.
The statute further provides that if the land owner's objections to the complaint for condemnation are overruled, the court or judge shall appoint appraisers, and from such interlocutory order overruling such objections and appointing appraisers the land owner may appeal to the Supreme Court, but the appeal shall not stay the proceedings. Thereafter the appraisers shall determine and report the value of the land and improvement and the damage resulting to the owner by virtue of the appropriation. Either party may contest the amount of damages or benefits, and upon the evidence adduced at that trial the court, as in civil actions, may render such findings and judgment as may seem just. From that judgment as to benefits or damages, either party may appeal to the Supreme Court of the state. If the plaintiff shall pay to the clerk of the court the amount of damages assessed by the appraisers, he may take possession of and hold the interest in the lands so appropriated for the uses stated in the complaint, subject to the first appeal, but the amount of benefits or damages shall be subject to review as hereinbefore stated.
The question presented by the motion to dismiss the appeal is whether the order of the District Court in overruling appellants' objections to the complaint and appointing appraisers was an order from which an appeal will lie to this court under section 128 of the Judicial Code. We think it was not. It is quite true that under the Indiana law the order was an appealable one, for it was made so by state statute, but the federal statute, by which we are controlled, provides otherwise. We do not understand that the federal conformity statutes were ever intended to abrogate the plain terms of any federal statute governing appeals in federal procedure.
To support their position, appellants rely on Wheeling & Belmont Bridge Company v. Wheeling Bridge Company, 138 U. S. 287, 11 S.Ct. 301, 34 L.Ed. 967. The facts in that case, however, are not analogous to those confronting us. There the case was instituted in the state court, which overruled the owner's...
To continue reading
Request your trial
-
United States v. 243.22 Acres of Land
...overrule Wheeling & Belmont Bridge Co. v. Wheeling Bridge Co., 138 U.S. 287, 290, 11 S.Ct. 301, 34 L.Ed. 967. But see Dieckmann v. United States, 7 Cir., 88 F. 2d 902, 904, where, in denying appellate jurisdiction, the court noted that in the Wheeling & Belmont Bridge case, a question of co......
-
Catlin v. United States
...Indiana v. City of Lebanon, 305 U.S. 558, 59 S.Ct. 84, 83 L.Ed. 352; Id., 305 U.S. 671, 59 S.Ct. 143, 83 L.Ed. 435; cf. Dieckmann v. United States, 7 Cir., 88 F.2d 902. The foundation of this policy is not in merely technical conceptions of 'finality.' It is one against piece- meal litigati......
-
United States v. Dieckmann
...appellants. They appealed from the order of appointment, and this court, holding the appeal premature, dismissed it. See Dieckmann v. United States, 7 Cir., 88 F. 2d 902. Thereafter the appraisers were unable to agree as to the appraisal, and a second group of appraisers was appointed, agai......
-
United States v. Catlin
...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 app......