Judson v. Gage

• Decision Date: 07 December 1899
• Docket Number: 114.
• Citation: 98 F. 540
• Parties: JUDSON et al. v GAGE, Secretary of the Treasury.
• Court: U.S. Court of Appeals — Second Circuit

98 F. 540

JUDSON et al. v GAGE, Secretary of the Treasury.

No. 114.

United States Court of Appeals, Second Circuit.

December 7, 1899

Geo. P Carroll, for the motion.

Robert E. De Forest, opposed.

Before WALLACE, LACOME, and SHIPMAN, Circuit Judges.

SHIPMAN Circuit Judge.

The proceeding is a motion to dismiss a writ of error upon the ground that the judgment which is sought to be reviewed was not a final judgment. The plaintiff in error has brought, and there is now pending, a petition for a writ of mandamus to require the settlement of a bill of exceptions in regard to matters not apparent in the record of the judgment. The secretary of the treasury brought an application to the district court for the district of Connecticut for the condemnation of described land in Bridgeport, Conn., which he had selected for an addition to the post office in that city being thereunto authorized by acts of congress approved June 4 and July 19, 1897 (30 Stat. 11, 112). The land belonged to R. M. Judson. The statute of Connecticut, under which the condemnation proceedings were conducted, provides that the court shall appoint a committee of three men, who shall ascertain the value of the land, and the damages to the owner from the taking, and report their doings to the court, which may accept the same, or, in case of irregular or improper conduct on their part, reject the report and appoint another committee. The United States district attorney and the attorney for Judson selected three persons, called, in the written submission signed by the said attorneys 'arbitrators,' and submitted to them the question of damages to Judson by reason of the enlargement of the post office, who heard the parties, and on August 8, 1898, awarded to Judson $32,000. At the December term, 1898, viz. on January 3, 1899, a judgment was entered of the acceptance of the award by the court, and for the payment to Judson of $32,000. Subsequently, at the same term, the secretary of the treasury moved that the judgment be opened, and that the award should be set aside. The counsel for Judson moved that the motion to open the judgment be denied for want of jurisdiction, which was denied, the judge making the following memorandum:

'Counsel for defendant contend that this court has no jurisdiction because the award was presented to the court during the preceding term, and they claim judgment was then rendered thereon. In support thereof they rely upon the following entries in the minute book of the judge: ''Oct. 5, (517) Gage, Sec'y Treasury, vs. Judson. Award of $32,000 in favor of Judson, and U.S. is satisfied with award, and asks report be accepted, and discontinue as to others. Order discontinuance granted. Balance continued.

"Oct. 7 U.S. (Gage) vs. Judson. Award approved and accepted; $32,000.'

'These minutes are not in any sense the entries of a judgment. They are the mere memoranda of the judge as to the proceedings in court, and as to the course to be pursued when the judgment file shall be presented.'

After a hearing upon the motion to set aside the judgment, the court, on May 23, 1899, ordered:

'That inasmuch as the court was never called upon to appoint any committee to assess damages for the taking of the land in question, and inasmuch as the arbitrators herein acted without any authority from or appointment by the court, an order may be entered vacating said award, and vacating the judgment as appears of record, approving and accepting said award.'

Thereupon the secretary of the treasury applied for the appointment of a new committee, but the hearing was postponed during the pendency of this writ of error. The proceeding under the statute of Connecticut is simply for the ascertainment of damages to the owner of the land, and can be styled an action at law, in which a writ of error is the proper mode of procedure by which the judgment of the trial court may be reviewed.

Upon the facts, as disclosed in the record, it is manifest that no final decision has been rendered in the district court. In behalf of Judson it is asserted that a bill of exceptions would show that a final judgment accepting the report of the committee had previously been made at the August term, 1898 viz. on October 7, 1898; that the court was without jurisdiction to proceed further in the case; and that the order of the succeeding term was void. The court was asked on May 26, 1899; to settle a bill of...