Judson v. United States

• Decision Date: 15 January 1903
• Docket Number: 31
• Citation: 120 F. 637
• Parties: JUDSON v. UNITED STATES
• Court: U.S. Court of Appeals — Second Circuit

120 F. 637

JUDSON v. UNITED STATES

No. 31

United States Court of Appeals, Second Circuit.

January 15, 1903

Styles Judson, Jr., and R. E. De Forest, for plaintiff in error.

George P. Carroll and F. H. Parker, U.S. Atty.

Before WALLACE, LACOMBE, and COXE, Circuit Judges.

LACOMBE Circuit Judge.

In September, 1897, the Treasury Department requested the Attorney General to give such instruction to the United States Attorney for the District of Connecticut as might be necessary to have proceedings in condemnation instituted against certain real estate in the city of Bridgeport owned by Judson, in order that the United States might acquire title thereto, for an addition to the post office in that city, authorized by act of July 19, 1897. The Attorney General forwarded a copy to the District Attorney, with instructions to 'institute proceedings on behalf of the United States for the condemnation of the land referred to.'

The statutes of Connecticut give the consent of the state to the acquisition by the United States by purchase, condemnation or otherwise for custom houses, post officers, etc. There is no suggestion that the methods by which the United States shall seek to condemn land are to be in any wise different from those to be pursued by the stated, or by some of its political divisions. The method prescribed for the state, for counties, towns, and school districts, is by the appointment of a committee. Application is to be made to the appropriate court or judge, the owner being brought into court by summons or other civil process. Said court or judge, after due notice of said application, shall appoint a committee of three disinterested men, who after being sworn and having given reasonable notice to the parties interested, shall view the land, hear the evidence ascertain the value, assess just damages to the owner or owners, and report their doings to said court or judge, who may accept the same, or may, in case of any irregular or improper conduct on the part of said committee in the performance of their duty, reject it; and in case of rejection said court or judge shall appoint another committee, who shall proceed in the same manner as the first one. The acceptance of the report of such committee shall operate as a judgment in favor of any person to whom damage is assessed. The land shall not be inclosed or used by the state until the amount is paid, and upon payment or deposit shall become the property of the state. Gen. St. Conn. 1902 tot. 31, 'Eminent Domain,' Secs. 4102-4121.

The District Attorney undertook to have the land condemned by such a proceeding. A petition to appoint a committee who should view the land, ascertain its value, assess just damages, etc., as provided in the statute, was prepared October 18, 1897, and within a few days was served on Judson, and on some others whose lands were at first included, but as to whom discontinuance has since been entered. Petition was accompanied by a summons directing respondent to appear before the District Judge on the first Tuesday of December, 1897.

What happened on the return day does not appear. The record discloses no action for nearly six months. On May 28, 1898, which, as the bill of exceptions says, was 'the day assigned for the appointment of the committee as prayed for,' the District Attorney and the attorney for Judson appeared, and informed the court that the case would furnish no business at that time, as the parties would probably reach an agreement as to a committee. At the time they had agreed together as to the appointment of Messrs. Robertson and Marsh. Subsequently they executed the following instrument, entitled in the United States District Court, with the name of the pending action, 'Lyman Gage, Treasurer, v. R. M. Judson. ' The title of the action was subsequently changed to 'United States v. R. M. Judson':

'Know all men that we, Charles W. Comstock, United States Attorney for the district of Connecticut, and Robert E. De Forest, of Bridgeport, attorney for the said R. M. Judson, do hereby promise and agree, to and with each other, to submit, and do hereby submit, all questions and claims between the said United States and the said R. M. Judson, in the action above mentioned and pending in said court, to the arbitrament and determination of Alex C. Robertson, of Montville, Connecticut, Charles B. Marsh, of Bridgeport, Connecticut, and Frederick A. Bartlett, of Bridgeport, Connecticut, and a decision and award of a majority of said arbitrators shall be final and conclusive upon the approval of the award so made by the court.

'The hearings to be in Bridgeport.

'In witness whereof we have hereunto set our hands and seals this 8th day of June, A.D. 1898.

Charles W. Comstock. (L.S.) 'Robert E. De Forest. (L.S.)'

The arbitrators viewed the property, heard evidence, ascertained the value, and assessed damages, the District Attorney taking part in all proceedings before them. On August 8th they signed an award of $32,000 to Judson for his land and damages, and on August 10th the District Attorney and the attorney for Judson filed this award and the agreement to arbitrate in the United States District Court. On October 5th the District Attorney appeared in court, stated that the government was satisfied with the award, and moved that it be accepted. Thereupon the District Judge made certain entries in his private minute book. These need not be set forth; they will be found in our former opinion, where their effect was discussed. Judson v. Gage, 39 C.C.A. 156, 98 F. 540. Suffice it to say that this court has held that they did not amount to a judgment. At the next term, however, on January 3, 1899, the court, upon the motion of the District Attorney, ordered and adjudged that the award be approved, judgment rendered thereon, and the land become the property of the United States upon payment of said award. Subsequently, at the same term of court, on February 6, 1899, the District Attorney moved that this judgment be reopened, the award set aside, and the condemnation proceedings instituted against Judson by the original petition in the case 'gone forward with in the manner authorized by law. ' After hearing and consideration, the District Judge, on May 23, 1899, made an order vacating the judgment and the award. The grounds of such action will be rehearsed infra. Thereafter, on June 12, 1899, the court ordered that a hearing on the appointment of a committee be had on July 17, 1899. The matter was adjourned from time to time, awaiting the decision of the former appeal (39 C.C.A. 156, 98 F. 540), as to the effect of the entries of October, 1898; and on February 5, 1900, the court appointed Messrs. Bristol, Tweedy, and Merwin a committee to proceed in conformity with the statutes of Connecticut heretofore cited.

The committee thus appointed gave notice, viewed the land, heard evidence, ascertained the value to be $15,525, assessed to Judson the said sum of $15,525, as his damages, and on January 25, 1901, reported their doings to the District Judge. Remonstrance against the acceptance of the report was filed by Judson's attorneys, and an answer thereto by the District Attorney, all in conformity to Connecticut practice; and on January 7, 1902, after due consideration, the report of the committee was accepted and confirmed, and judgment entered directing the payment of $15,525 by the United States, and that upon such payment the land should become the property of the United States. This writ of error was sued out to review such judgment.

These facts have been abstracted from the record with considerable difficulty, by reason of the clumsy manner in which it has been put together. It contains many papers which have nothing whatever to do with the matters sought to be reviewed by the writ of error. It seems as if all the papers which were to be found on file in the clerk's office, entitled in this cause, had been hastily gathered together without any regard to their logical sequence, and certified to this court, without the slightest effort to eliminate those which have nothing to do with this appeal.

The remonstrance against the acceptance of the report contains many averments of 'irregular and improper conduct' on the part of the committee in excluding testimony offered on behalf of Judson. Of these, certainly one is most serious, and might, if it were analyzed, be sufficient ground for reversal; but such a reversal would leave the fundamental question undisposed of. The important point to be decided is whether the court had authority to vacate the judgment of January 3, 1899, approving the award and decreeing accordingly. Of course, if he had no such authority, that judgment stands, it terminated the cause in the District Court, the subsequent proceedings were all irregular and unauthorized, and the judgment appealed from should be itself vacated.

When application was made to vacate the first judgment there was nothing before the court to show any irregular or improper conduct in the performance of their duty on the part of the persons who made the original award; there was nothing to show that their award was so high that the court should have refused to accept it; and the District Judge in the order vacating both judgment and award expressly states the grounds therefor as follows: 'Inasmuch as the court was never called upon to appoint any committee to ascertain 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. ' These grounds are more fully set forth in the following excerpts from the opinion:

'No order of appointment of a committee was ever made by the court, the court never having known the names of the person acting

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