Colorado Fuel & Iron Co. v. Four Mile Ry. Co.

• Decision Date: 18 November 1901
• Parties: COLORADO FUEL & IRON CO. et al. v. FOUR MILE RY. CO.
• Court: Colorado Supreme Court

66 P. 902

29 Colo. 90

COLORADO FUEL & IRON CO. et al. v. FOUR MILE RY. CO.

Supreme Court of Colorado

November 18, 1901

Appeal from Garfield county court.

Action by the Four Mile Railway Company against the Colorado Fuel &amp Iron Company and another. Judgment for plaintiff, and defendants appeal. Reversed.

Appellee instituted an action to condemn a right of way for railroad purposes. From a judgment awarding a right of way and fixing the damages to which appellants were entitled, they bring the case here for review on appeal. The material facts appear in the opinion in connection with the questions decided.

D. C. Beaman and John T. Shumate, for appellants.

S. H Kinsley, Chas. T. Brown, and E. J. Churchill, for appellee.

GABBERT J.

The first point made is that the court erred in refusing to transfer the cause to the federal court on the petition of the Central Trust Company. From this petition and the pleadings filed on behalf of appellee it appears that the fuel company is a corporation organized under the laws of the state of Colorado, and the trust company a corporation organized under the laws of the state of New York. The latter is trustee for holders of bonds secured by mortgage on the premises over which the right of way is sought. The trust company claimed in its petition for removal that the value of the land and damage which it would sustain exceeded the sum of $2,000. It was certainly within the province of the trial court to determine from the facts presented whether or not the party asking for a removal to the federal court was entitled thereto. The mere filing of a petition for this purpose does not ipso facto entitle the party filing it to a removal. The court to which it is addressed must determine its sufficiency; that is to say, determine, from the facts therein stated, in connection with those which already appear, whether or not a case is made which entitled the petitioner to a removal. Crehore v. Railway Co., 131 U.S 240, 9 S.Ct. 692, 33 L.Ed. 144; Railroad Co. v. Dunn, 122 U.S. 513, 7 S.Ct. 1262, 30 L.Ed. 1159. The citizenship of the trust company was immaterial. Neither is the amount in controversy of any moment on the subject of removal. Both appellants were indispensable parties to this proceeding. It could not proceed without the presence of both, as they were each interested in the subject-matter of controversy. Their interests were not such that they could be separated. Neither was the controversy between the parties of such character that it was divisible. So that the appellee could maintain a separate action against each of the appellants, wherein the rights of each could be fully determined by itself apart from the rights of the other. Hence, under the federal statute governing the removal of causes from state to federal courts, the action of the trial court in denying the petition to remove was correct. Bellaire v. Railroad Co., 146 U.S. 117, 13 S.Ct. 16, 36 L.Ed. 910; Peper v. Fordyce, 119 U.S. 469, 7 S.Ct. 287, 30 L.Ed. 435; Crump v. Thurber, 115 U.S. 56, 5 S.Ct. 1154, 29 L.Ed. 328.

It is said on behalf of appellants that, because the affidavits filed in support of the application to transfer to the federal court were not controverted, the county court should have dismissed the proceedings. Those affidavits averred that the value of the land sought to be taken and the resulting damages exceeded $2,000. The petition states that the value of such lands, together with the damages which would accrue to those adjoining owned by the appellants, does not exceed the sum of $2,000. The sole object of the proceeding, as measured in money, was to ascertain the damages to which appellants were entitled. To try the question of jurisdiction in limine on a controverted question of fact as to the amount of damages would have, in effect, been a trial of the cause in advance upon its merits before the court. The express averments of the petition gave the court jurisdiction. In this instance the only way to settle the truth of these averments which would finally determine the jurisdiction of the court, so far as the amount involved was concerned, was to await a verdict and judgment. People v. Garfield Co. Court, 26 Colo. 478, 58 P. 591; Sievers v. Same, 11 Colo.App. 147, 52 P. 634. The averments of the petition relative to jurisdiction were conclusive as against an attack by the affidavits in question.

After the petition for condemnation was filed, the court entered an order on the application of petitioner, permitting it to take possession of the proposed right of way pending the determination of the condemnation proceedings upon the deposit of $75. No notice of an application for an order of this character was given appellants; neither was there any averment in the petition as to the necessity of such possession. It is claimed on their behalf that the amount of the deposit was wholly insufficient. The sum subsequently adjudged as damages for the right of way in controversy has been paid into court by the appellee. The proceedings which led up to the order for possession may have been very irregular, but they were only interlocutory in character. Interlocutory orders, though erroneous, which do not prejudice the rights of the party against whom they are made, are insufficient to reverse a cause when it does not appear that such orders have any prejudicial effect upon the disposition of the case upon its merits.

Appellants filed a petition for a change of venue, in which they charged that the court was prejudiced against them, on account of which they feared that they would not receive a fair and impartial trial. They appear to have based their allegation upon the fact that, notwithstanding affidavits upon their part that the damages which they would sustain for the right of way would exceed the sum of $2,000, the court only required a deposit of $75 as a condition precedent to the order of possession, and that the latter order was obtained without any notice to them. This petition was denied. On the facts stated in the petition, we do not think that the court erred in denying the application. It may have made a mistake in the procedure, in that the order of possession was entered without notice to appellants, or subsequent proceedings may have disclosed that the amount of the preliminary deposit was insufficient; but these matters do not show such a prejudice on the part of the judge as would prevent appellants from receiving a fair and impartial trial at his bands.

The sufficiency of the petition for condemnation is also challenged, for the reason that it fails to state facts from which it can be inferred that the parties had failed to agree upon compensation for the right of way. It is also claimed that the description of such right of way is not sufficiently definite. The petition states 'that the petitioner has endeavored to agree with the respondents upon the compensation to be paid in respect to the property herein sought to be taken, but has been unable to acquire the right of way herein described by purchase or voluntary grant from the said respondents.' Our attention is not directed to any action on the part of appellants challenging the sufficiency of the petition in the court below, nor any motion requiring a more definite description of the right of way. This court has frequently decided that an attack upon a pleading, made for the first time on appeal, is not regarded with favor, and will not prevail, unless the pleading thus challenged is so radically defective that it will not support the judgment rendered. In re Thomas' Estate, 26 Colo. 110, 56 P. 907; Insurance Co. v. Bonner, 24 Colo. 220, 49 P. 366; Brothers v. Brothers, 28 Colo. ----, 66 P. 901. If the statute relating to proceedings in eminent domain (section 1716, 1 Mills' Ann. St.) requires that a party seeking to condemn property must aver in his petition that the compensation to be paid for the property so sought to be appropriated cannot be agreed upon, the language of the petition in this instance was sufficient from which to infer that fact, and is a sufficient compliance with the statute in the absence of an attack below. Bowman v. Railway Co., 102 Ill. 459; Booker v. Same, 101 Ill. 333. An examination of the description of the right of way convinces us that it was sufficiently definite, so that any one versed in the nomenclature employed for the description of lands could locate it without any trouble. Such, in fact, is the testimony of a surveyor on this subject.

This cause was set for hearing in term time. In apt time appellants demanded a jury. What the record may disclose with respect to the attendance of a regular panel of jurors at the term at which the cause was tried is immaterial. The contention of counsel for appellants is that, the cause being tried at a regular term, the issues should have been submitted to a jury selected from a regular panel. The record shows that a jury had been summoned for this particular case the persons summoned for this purpose having been selected in accordance with the provisions of section 1722, 1 Mills' Ann. St., which provides that in cases fixed for hearing in vacation the clerk of the court shall write the names of 24 disinterested freeholders of the county on as many...