Chi., R. I. & P. Ry. Co. v. Dey

• Decision Date: 20 December 1888
• Citation: 76 Iowa 278,41 N.W. 17
• Parties: CHICAGO, R. I. & P. RY. CO. v. DEY ET AL., RAILROAD COMMISSIONERS.
• Court: Iowa Supreme Court

76 Iowa 278

41 N.W. 17

CHICAGO, R. I. & P. RY. CO.

v.DEY ET AL., RAILROAD COMMISSIONERS.

Supreme Court of Iowa.

Dec. 20, 1888.

Appeal from district court, Johnson county; S. H. FAIRALL, Judge.

Action in chancery in the district court of Johnson county to enjoin defendants, Peter A. Dey, Spencer Smith, and F. T. Campbell, railroad commissioners, from publishing and enforcing a schedule of rates, or tariff of charges, for the transportation of property by the railroads of the state. A temporary injunction was allowed by the Hon. S. H. FAIRALL, judge of the district court, and a motion to dissolve it was overruled. The allowance of the injunction, and the order overruling the motion to dissolve it, were made by the judge at chambers. Defendants appeal from the order overruling the motion.A. J. Baker, Atty. Gen., C. C. Nourse, and James T. Lane, for appellants.

Thos. S. Wright, A. E. Swisher, J. C. Bills, and E. E. Cook, for appellees.

BECK, J., ( after stating the facts substantially as above.)

1. The petition in this case alleges, among other matters, that the railroad commissioners of the state have adopted a “schedule of reasonable maximum rates of charges for transportation on freights and cars on and over the railroads of the state,” which, for the reason that the rates of charges thus fixed are unreasonable, and too low, and for other reasons, should not be enforced. The relief sought is that the defendants be enjoined from publishing the schedule preparatory to enforcing it; and from instituting proceedings and prosecutions for its enforcement. A temporary injunction was allowed, and a motion to dissolve it was overruled. Thereupon defendants appealed to this court, and the cause was submitted for decision upon arguments oral and printed. Subsequently plaintiff filed in the district court of Johnson county, wherein the cause was commenced and is pending, a paper dismissing the cause, and showing that the plaintiff had paid all costs in the case. It is alleged in the paper that the dismissal is made on the ground that the schedule of rates complained of has been abandoned by defendants. Thereupon dismissal of the cause was entered of record in the district court, which, with the paper filed therein dismissing the case, and a statement of the payment of the costs, were duly certified to this court, and made a part of the papers in the case in this court.

2. It will be observed that the cause is in this court upon an appeal from a decision upon an interlocutory matter. That decision did not affect the final disposition of the case. After the decision, it remained for trial in the district court whether the decision appealed from should be affirmed or reversed. The case would proceed without regard to the pendency of the appeal in this court. If before the final disposition of this case, this court should reverse the decision appealed from, the district court would be required to conform its action to the decision of this court. The right of plaintiff to dismiss the case cannot be doubted. All plaintiffs have the right in all cases to withdraw or dismiss their actions, subject, of course, to the rights of the other parties, acquired by reason of the institution of the suits, and to liabilities incurred thereby. We do not understand that counsel for defendants deny this proposition. The dismissal of the action by plaintiff operates to end the case. There was no case between the parties pending thereafter in the district court. This proposition cannot be doubted. But that dismissal, it must be admitted, did not supersede the appeal in this court. The case in this court was not dismissed by virtue of the dismissal of the cause in the court below. But the case here involves an interlocutory matter only, namely, the question whether the injunction granted by the district court should be continued or be dissolved. Now, there can be no injunction if there is no case. But the case, as we have seen, is ended. The injunction proceedings must end with the case. The injunction is a remedy sought in the action; it is an incident or a proceeding in the action. This incident--this proceeding --...