Colorado Eastern Ry. Co. v. Union Pac. Ry. Co.
| Decision Date | 10 April 1899 |
| Docket Number | 1,121. |
| Citation | 94 F. 312 |
| Parties | COLORADO EASTERN RY. CO. v. UNION PAC. RY. CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
The plaintiff in error filed its petition in the state court of Colorado for condemnation of a right of way. The original petition was filed on September 12, 1892, and the cause was removed to the federal court by defendant in error on October 14, 1892. The transcript of the record was filed on November 1, 1892. No action was had on the petition until October 4 1894, when the plaintiff in error filed a petition asking that the suit be not dismissed under the rule of the circuit court for the district of Colorado, which provides that all suits in which no progress has been made during the preceding year should be dismissed, setting up that at the time there were pending in the supreme court of the United States and the court of appeals of Colorado suits to determine the question of the right of plaintiff in error to condemn the land in dispute.
Nothing further was done in the cause until April 29, 1896, when another petition was filed by the plaintiff in error praying the court not to dismiss the proceeding, assigning the same reasons as were set up in the petition filed October 4, 1894. The cause pending in the United States supreme court was finally disposed of November 20, 1895, and the one in the Colorado court of appeals in October, 1896. No further steps were taken in the cause until June 29, 1898, when the defendant in error filed a petition to dismiss the suit for failure to prosecute. To this motion a reply was filed, and on July 5, 1898, the same came on for hearing, whereupon the court dismissed the cause 'for failure duly to prosecute the same,' and rendered judgment for costs against the plaintiff in error.
Lucius M. Cuthbert (Henry T. Rogers and Daniel B. Ellis, on brief) for plaintiff in error.
Willard Teller (Harper M. Orahood, on brief), for defendant in error.
Before CALDWELL, SANBORN, and THAYER, Circuit Judges.
CALDWELL Circuit Judge (after stating the facts).
The defendant in error moves to dismiss the writ of error upon the ground that the dismissal of a cause for want of prosecution is not subject to review by an appellate court. The motion must be denied. An order of dismissal for want of prosecution and a judgment for costs against plaintiff is a final judgment from which an appeal will lie. Tunnel Co v. Pell, 4 Colo. 184; Wood v. Coman, 56 Ala 283;...
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