Forbes v. United States

• Decision Date: 05 November 1920
• Docket Number: 3520.
• Citation: 268 F. 273
• Parties: FORBES et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

268 F. 273

FORBES et al. v. UNITED STATES.

No. 3520.

United States Court of Appeals, Fifth Circuit.

November 5, 1920

Fred S Ball and E. R. Beckwith, both of Montgomery, Ala., and Sidney J. Bowie, of Birmingham, Ala., for plaintiffs in error.

Thomas D. Samford, U.S. Atty., of Opelika, Ala., and Wiley C. Hill Sp. Asst. Atty. Gen., of Montgomery, Ala., for the United States.

Before WALKER, BRYAN, and KING, Circuit Judges.

WALKER Circuit Judge.

This was a petition filed in January, 1918, in the District Court by the District Attorney in the name of the United States (defendant in error here), praying the condemnation of the fee and all interest of the plaintiffs in error, A. G Forbes, the Interstate Casualty Company, and the Capital National Bank, respectively the owner of, and the holders of mortgages on, described lands, being one quarter section and three half sections in Montgomery county, Ala., which the petitioner alleged were needed for a military training camp. The respective parties will be herein referred to as the plaintiff and the defendants. After the petition was filed, the court by order set a day for hearing the application, and directed that 10 days' notice of the application and of the day appointed for hearing the same be given the defendants by personal service by the marshal. On the day so appointed, personal service having been duly made and all parties being present or represented, and no objection to the petition being made by the defendants or any of them, the court, after evidence of the truth of the allegations of the petition had been adduced, granted the petition, and appointed three commissioners to assess the damages and compensation to which the defendants were entitled. After the commissioners had made an award, the defendant Forbes gave written notice of an appeal from such award and from the court's order of condemnation, demanding 'a trial de novo in said cause, with a trial by jury. ' The court ruled that the defendants were entitled to have the damages and compensation assessed by a jury, which was done, but decided that they were not then entitled to raise objections to the petition by demurrer or to interpose the pleas tendered thereto. The action of the court in making the lastmentioned ruling is a principal subject of complaint in this court.

The Act of Congress of July 2, 1917, entitled 'An Act to authorize condemnation proceedings of lands for military purposes,' contains the following provision:

'That hereafter the Secretary of War may cause proceedings to be instituted in the name of the United States, in any court having jurisdiction of such proceedings for the acquirement by condemnation of any land, temporary use thereof or other interest therein, or right pertaining thereto, needed for the site, location, construction, or prosecution of works for fortifications, coast defenses, and military training camps, such proceedings to be prosecuted in accordance with the laws relating to suits for the condemnation of property of the states wherein the proceedings may be instituted.' 40 Stat. 241 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 6911a).

That act also contains, among other provisions, one authorizing the Secretary of War to accept on behalf of the United States donations of lands required for the purposes mentioned in the above-quoted part of the act, and another authorizing the immediate taking possession of lands, etc., sought to be acquired in time of war for any of such purposes. By the Alabama general statute providing for the condemnation of lands for public uses, a written and verified application for an order of condemnation, stating the name and residence of the applicant, the uses or purposes for which the land is to be taken, and the interest or easement therein to be acquired, is to be made to the court of probate of the county in which such land, or a material portion thereof, may be situate. On a day appointed, to be at least 10 days after service by the sheriff or other legal officer on all owners of land sought to be condemned of notice of the application and of the day appointed for hearing the same, that court must hear the allegations of the application, and any objections that may be filed to the granting thereof, and any legal evidence touching the same, and make an order granting or refusing the application. If the application be granted, in whole or in part, the judge of probate must appoint three citizens of the county, possessing prescribed qualifications, to assess the damages and compensation to be paid to the owner or owners of the land. Either party may appeal from the order of condemnation to the circuit or city court of the county, 'and on such appeal the trial shall be de novo'; and upon the trial in the court to which the appeal is taken an order of condemnation in accordance with the application is to be made, on the payment into court of the sum ascertained and assessed by the verdict of the jury and the costs of the suit. Code Ala. 1907, Secs. 3860, 3862, 3865, 3868, 3869, 3875, 3879, 3882.

The proceeding provided for by the above-mentioned act being a suit at law, and the District Court being a court having original jurisdiction of all suits of a civil nature, at common law or in equity, brought by the United States (Metropolitan R. Co. v. District of Columbia, 195 U.S. 322, 25 Sup.Ct. 28, 49 L.Ed. 219; Judicial Code, Sec. 24 (Comp. St. Sec. 991)), that act authorizes the bringing of the suit in that court, and its terms show that it was contemplated that, if a condemnation suit is so brought, the case throughout, from the filing of the application until judgment on a verdict of a jury assessing damages, if trial by jury is demanded, is to remain in that court, by which alone all action required to effect the condemnation sought is to be taken. The provision of the act that the proceedings provided...