City of Greenwood v. Humphrey & Co., Inc

Citation179 So. 862,182 Miss. 91
Decision Date23 May 1938
Docket Number32224
PartiesCITY OF GREENWOOD v. HUMPHREY & CO., INC
CourtMississippi Supreme Court

(Division A.)

1. REMOVAL OF CAUSES.

If order remanding cause from federal to state court was void it was of no efficacy, the case was still pending in the federal court, and the state court from which cause had been removed was without jurisdiction thereof.

2. REMOVAL OF CAUSES.

Where case instituted in state court had been removed to federal court for Northern District of Mississippi and federal District Judge for Southern District of Mississippi had been assigned to Northern District, and where application for remand of case to state court had been submitted to the assigned judge outside the territorial limits of the Northern District, he was without power to decide the application. (Jud. Code, sec. 18, 28 U.S.C. A., sec. 22).

3 PROHIBITION.

Statute extending scope of writ of prohibition in eminent domain cases leaves in full force other common-law grounds for writ of prohibition, including want of jurisdiction in the offending court to try the case, the trial of which is sought to be prohibited (Code 1930, section 1510).

4 PROHIBITION.

Where order remanding condemnation proceeding from federal to state court was void, the remedy of appeal from judgment fixing amount of compensation did not preclude resort to writ of prohibition, since the appeal would not stay right of condemner to appropriate land to public use, and would not prevent irreparable injury from being inflicted on landowner even though judgment of condemnation should be set aside by appellate court (Code 1930, sections 1497, 1510).

5 PROHIBITION.

Where federal District Judge for Southern District of Mississippi had been assigned to Northern District, condemnation proceeding had been removed to federal court of the Northern District, and the assigned judge without territorial limits of the Northern District on application not presented within Northern District made an order remanding condemnation proceeding to state court, the landowner was entitled to writ prohibiting state court from proceeding with the condemnation case, since the order of remand was void and remedy of appeal from the judgment of condemnation was inadequate (Code 1930, sections 1497, 1510).

ON MOTION.

(Division A. May 23, 1938.)

[181 So. 517. No. 2224.]

Division A

March 28, 1938

APPEAL from the circuit court of Leflore county, HON. S. F. DAVIS, Judge.

Proceeding by Humphrey & Co, Inc., against the City of Greenwood and the Judge of the County Court of Leflore County for a writ of prohibition. From an adverse judgment, the City of Greenwood appeals. Affirmed.

On motion to correct the judgment. Motion sustained.

Affirmed.

A. H. Bell and R. C. McBee, both of Greenwood, for appellant.

When this matter of considering the motion to remand the cause that had been removed to the Federal District Court at Clarksdale was presented to Judge Edwin R. Holmes, it was then his duty to inquire into the jurisdiction of the motion; that is, whether he had the jurisdiction to hear and determine the same. In doing so, it became his duty to inquire into the following conditions: (a) Whether he had been appointed by the senior circuit judge of the circuit district to hold the district court in the place or in aid of the judge of the district wherein this cause was pending, and to have power to exercise the same powers vested in the judge of said district. (b) Whether the term of court that began in Clarksdale on the fourth Monday of January, 1935, had been finally adjourned by a proper order on the minutes thereof.

It is presumed that Judge Edwin R. Holmes came to the conclusion that he was so appointed and that such matter had been referred to him by the judge of the district in which Clarksdale is located and that he was to serve in the place or in the aid of the judge of said district. There seems to be no objection seriously presented to this feature of the cause by the appellee.

Having considered that he was to aid the judge of the Clarksdale District, it was then the duty of Judge Edwin R. Holmes to determine if the term of court began on the fourth Monday in January, 1935, had been closed or was still open, either for all purposes, or for such limited purposes, such as the entertaining of motions to remand and the like. If is a presumption of law that Judge Edwin R. Holmes did make such inquiry, and that on such inquiry he found that either the said January 1935 term was not adjourned, or that there was an order on the minutes thereof leaving said district court open for the purpose of entertaining and deciding motions to remand causes to state courts that had previously been removed to the Federal District Court. There is no showing by the appellee that such order does not exist, and the presumption of law is that it does exist and that Judge Edwin R. Holmes so inquired into said term and so determined that an order permitting the court to hear motions to remand at any time was entered on the minutes of the said court.

15 C. J. 827; Broom v. Bd. of Suprs., Jefferson County, 158 So. 344, 171 Miss. 586; Walton v. Gregory Funeral Home, 154 So. 717, 170 Miss. 129.

If there is any construction that can be placed on the acts of Judge Edwin R. Holmes in remanding this cause that upholds its validity, then it is the duty of the court to follow such construction. An act of the judge in vacation may be an act of the court, although the court be held over as the presumption this was held.

8 Am. & Eng. Enc. Law (2 Ed.) 22, 23; L. & N. R. R. Co. v. McDonald, 79 Miss. 641.

Regarding the presumption of the validity of this order of remand, and respecting the duty of the court in interpreting it, or construing it, it seems to be almost universally held that judgments will, if possible, be declared valid, and the inference is that such are valid, until so shown by inescapable evidence to the contrary.

Scott County v. Dubois, 130 So. 106, 158 Miss. 245.

An inference must be drawn, therefore, as to whether the District Court that convened at Clarksdale on the fourth Monday in January, 1935, had entered an order of adjournment sine die, or had remained open for the hearing of motions to remand causes or other such matters as often come before the court when not actually engaged in the trial of cases during the session. Nothing appearing in the record, the presumption is that the court had not adjourned sine die, but was open for the hearing and deciding of such motion to remand.

15 C. J. 899, sec. 270; Harrison v. German-American F. Ins. Co., 90 F. 758; Wallace v. Clements, 248 N.W. 58; Realty Holding Co. v. Donaldson, 294 F. 541; Abbott v. Brown, 241 U.S. 606, 60 L.Ed. 1199.

It has been the uniform practice and custom for attorneys to meet at the chambers of the judge or at his office and present motions of this character.

Judge Holmes was appointed to assist the federal judge in the district court of the Northern District. He had all powers that the judge of that district had, but relinquished none of his powers in his district; in other words, he became judge of both districts while he was so acting for the judge of the northern district. The provision of statute authorizing a judge of one district to serve in the aid of another judge of a different district was enacted for the quicker dispensation of justice, the orderly trial of cases, and the efficient dispatching of business of the courts, and to prevent the law's delay. The appointment of Judge Holmes to assist the judge of the Northern District was in effect at the time of the signing of the order remanding this cause to the state court.

Cheesman v. Hart, 42 F. 98; In re American Hoke Furnishers' Corp., 296 F. 605; Apgar v. U.S. 255 F. 16; 28 U.S.C. A., sec. 13; 33 C. J. 966, sec. 92; Harlan v. McGourin, 180 F. 119, 54 L.Ed. 1101; U.S.C. A., sec. 731.

The order is valid on its face, and it recites that the defendant had been given "proper notice of the time, place and motion for remand, and of the hearing of said motion on this date before the undersigned in Yazoo City, Mississippi." The objection to this order as presented by the appellee constitutes a collateral attack on the judgment of the Federal District Court of Mississippi.

Under the authority of this order, which was issued by virtue of the provisions of Section 21, Title 28, of the U.S.C. A., Judge Holmes had authority to hear this motion and render the order remanding it just as the judge of the Northern District could have done.

Apgar v. U.S. 255 F. 16.

This is not a direct attack on the judgment, and the other matters objected to by the appellee cannot be entertained in this proceedings.

Cotton v. Harlan, 87 So. 152.

On collateral attack, every intendment is in favor of the judgment.

Martin v. Miller, 60 So. 772; 28 U.S.C. A., sec. 71, 80, page 378.

The court could on its own motion have remanded this cause without any notice to either party, if at any time it appeared that the suit was not a one properly within the jurisdiction of the district court.

Indiana v. Tolleston Club of Chicago, 53 F. 18.

We submit that Section 1510 does not apply to county courts, but applies only to special courts of eminent domain. The Supreme Court of Mississippi has twice held that there are no special courts of eminent domain in counties where the county courts exist.

Hattiesburg v. Pritchett, 160 Miss. 342, 134 So. 140; Miss. State Hwy. Dept. v. Haines, 139 So. 168.

Section 1510, we contend, applies only to courts of eminent domain and cannot apply, because of Section 17 of the Constitution, to county courts. Section 1510 does not apply to eminent domain proceedings in county courts. It is a part of ...

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