Carmichael v. City of Texarkana, Ark.

• Citation: 116 F. 845
• Decision Date: 07 July 1902
• Docket Number: 1,626.
• Parties: CARMICHAEL et al. v. CITY OF TEXARKANA, ARK., et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

116 F. 845

CARMICHAEL et al. v. CITY OF TEXARKANA, ARK., et al.

No. 1,626.

United States Court of Appeals, Eighth Circuit.

July 7, 1902

F. M Henry, for appellants.

W. H Arnold, for appellees.

Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District judge.

SANBORN Circuit Judge.

This is an appeal from a decree rendered on May 22, 1901, which dismissed the amended bill of the complainants. The appellees, F. W. Mullins, P. J. Ahern, R. J. O'Dwyer, Q O. Turner, W. J. Buhrman, J. W. Harris, and R. A. Munson have made a motion to dismiss the appeal so far as they are concerned, because on December 8, 1899, a decree was rendered herein which sustained their separate demurrers to the amended bill, and dismissed them from the case, while the suit remained pending against the defendant the city of Texarkana until, after answer and replication, the decree which finally dismissed the bill as against the city was rendered on May 22, 1901. The amended bill charged the city of Texarkana and the defendants, who demurred to it, with creating and maintaining a cesspool and fouling the waters of a stream by means of an open sewer, which poured its contents into a brook whose pure water had previously flowed by the lands and houses of the complainants; and its prayer was for a decree against all the defendants for the damages which the complainants alleged that they had sustained, and for an injunction restraining them from maintaining the sewer. The demurrers of the defendants who present this motion to dismiss were sustained, on the ground that they were improperly joined with the city in the suit, and that the bill was multifarious. Thereupon a decree was rendered on December 8, 1899, dismissing them from the case. No appeal was taken from that decree. If that was a final decree, this motion must be granted. If it was an interlocutory decree, it must be denied.

The act creating the circuit courts of appeals provides:

'That the circuit courts of appeals established by this act shall exercise appellate jurisdiction to review by appeal or by writ of error final decisions in the district court and the existing circuit courts in all cases other than those provided for in the preceding section of this act unless otherwise provided by law.'

26 Stat.c. 517, Sec. 6, Supp. Rev. St. p. 903, Sec. 6.

No jurisdiction, except in the cases of orders granting or continuing injunctions or appointing receivers, is given to this court to review any order, judgment, or decree made in the progress of the case which does not embody a final decision.

In Standley v. Roberts, 59 F. 836, 839, 8 C.C.A. 305, 308, this court said:

'A case cannot be brought to this court piecemeal. An order, judgment, or decree which leaves the rights of the parties to the suit affected by it undermined-- one which does not substantially and completely determine the rights of the parties affected by it in that suit-- is not reviewable here until a final decision is rendered, nor is an order retaining or dismissing parties defendant, who are charged to be jointly liable to the complaint in the suit, appealable. U.S. v. Girault, 11 How. 22, 32, 13 L.Ed. 587; Hohorst v. Packet Co., 148 U.S. 262, 263, 13 Sup.Ct. 590, 37 L.Ed. 443. ' Salmon v. Mills, 66 F. 32, 13 C.C.A. 372.

In Mendenhall v. Hall, 134 U.S. 559, 563, 567, 568, 10 Sup.Ct. 616, 33 L.Ed. 1012, Mendenhall, a mortgagee, brought a bill in equity against Clark N. Hall, the mortgagor, and Charles F. Hall, the owner of a tax title on the mortgaged property, to subject it to the lien of and to foreclose the mortgage. He alleged in his bill that Charles F. Hall had procured the tax title by collusion with his brother, Clark N. Hall, for the purpose of defeating his claim under the mortgage. Charles F. Hall demurred to the bill for multifariousness. His demurrer was sustained, and a decree was entered on May 12, 1885, which dismissed the bill as to him. Clark N. Hall answered. A replication was filed, and after a final hearing a decree was rendered on April 14, 1886, to the effect that the complainant's demand for the recognition of his mortgage be rejected, but that he have judgment against Clark N. Hall for the amount of the mortgage debt. The complainant appealed from this decree. Charles F. Hall had not been served with notice of the appeal during his lifetime, and it was not until January 13, 1890, that a citation was served on his administratrix and widow. She objected to a review of the decree dismissing her former husband from the suit, on the ground that the judgment in his favor had become res adjudicata by the expiration of the time within which an appeal might have been taken, and that the supreme court was without jurisdiction of the case as to him. The answer of the court was:

'The appeal brings before us not only the final decree of 1886, sustaining the demurrer and plea of Charles F. Hall, and dismissing the suit as to him. It was not necessary to take an appeal from the latter order until after the whole case was determined in the court below.'

In Bank v. Smith, 156 U.S. 330, 333, 15 Sup.Ct. 358, 39 L.Ed. 441, a creditor's bill was brought by the bank against its debtor, D. R. Smith, a judgment creditor, Daniel C. Stelling, and several other parties, to subject certain land to the lien of the bank's judgment. Stelling demurred, and his demurrer was sustained. The complainant was allowed as an appeal from the judgment sustaining this demurrer and dismissing the bill as to Stelling. Upon the presentation of the case in the supreme court, that court said:

'A decree, to be final for the purposes of appeal, must leave the case in such a condition that if there be an affirmance in this court, the court below will have nothing to do but execute the decree it has already entered. Dainese v. Kendall, 119 U.S. 53, 7 Sup.Ct. 65, 30 L.Ed. 305. * * * It may be that if the order of the circuit court were affirmed, appellant would abandon further effort against the other defendants, while it is clear enough that if the order were reversed, the case would be proceeded in against them all. * * * As the order upon the demurrer did not dispose of the whole case, the decree is not final, and we cannot entertain jurisdiction. Appeal dismissed.'

In U.S. v. Girault, 11 How. 22, 32, 13 L.Ed. 587, which was a writ of error to review a judgment in favor of some of the defendants in an action on a bond, while the suit was undisposed of as to one defendant, the writ of error was dismissed for want of jurisdiction, because the judgment was not final, in that it did not dispose of the whole case. In Holcombe v. McKusick, 20 How. 552, 554, 15 L.Ed. 1020, may be found this declaration:

'It is the settled practice of this court, and the same in the king's bench in England, that the writ will not lie until the whole of the matters in controversy in the suit are disposed of. The writ itself is conditional, and does not authorize the court below to send up the case, unless all the matters between the parties to the record have been determined.'

In Hohorst v. Packet Co., 148 U.S. 262, 264, 13 Sup.Ct. 590, 37 L.Ed. 443, a bill in equity was brought against the packet company and other defendants, which, as it was amended, charged the defendants with jointly infringing a patent. The service of the subpoena on the packet company was set aside, and the bill was dismissed as to that corporation, while it remained pending as to the other defendants. The complainant appealed, and the appeal was dismissed because the whole case was not disposed of by the decree.

The decree which sustained the demurrers of the appellees who make this motion, and dismissed them from this suit, left this case pending and undetermined between the complainants and the city of Texarkana. It did not dispose of the whole case. The complainants charged that these defendants were jointly liable with the city for the damages which they set forth and to the injunction which they sought, and the authorities to which reference has been made conclusively establish the rule that an order or decree which retains or dismisses parties defendant who are charged to be jointly liable to the complainant with other defendants in the suit is not a final decision, and cannot be reviewed in this court, because it does not dispose of the whole case. The decree of May 22, 1901, was, therefore, the only final decision or decree in the case in hand. The appeal from that decree presents all previous orders, decisions, and proceedings in the case, including the decree of December 8, 1899, for review here, and the motion to dismiss it as to the demurrants must be denied.

The demurrants, who were dismissed from this case by the decree of 1899, were inhabitants of the city of Texarkana, who were sued jointly with that city for constructing and operating therein a sewer, which caused a continuing nuisance, to the injury of the complainants. Their demurrers were sustained on the grounds that they were improperly joined with the city and that the bill was multifarious, and the only question presented in this case is the soundness of this ruling. In their amended bill the complainants allege that these demurrants and other citizens of Texarkana invoked the powers of that city to construct a sewer system for the benefit of its inhabitants; that they agreed with the city that they would occupy and use the sewer plant with their sinks and privies for the purpose of removing all the filth and putrid matter from their respective premises; that the city of Texarkana constructed a sewer system in...