Orleans-Kenner Electric Ry. Co. v. Dunbar

• Decision Date: 17 December 1914
• Docket Number: 2664.
• Parties: ORLEANS-KENNER ELECTRIC RY. CO. v. DUNBAR.
• Court: U.S. Court of Appeals — Fifth Circuit

218 F. 344

ORLEANS-KENNER ELECTRIC RY. CO. v. DUNBAR.

No. 2664.

United States Court of Appeals, Fifth Circuit.

December 17, 1914

Rehearing Denied January 11, 1915.

Peter Stifft, T. M. Miller, and J. D. Miller, all of New Orleans La., for appellant.

Frank William Hart and H. Generes Dufour, both of New Orleans, La (Gustaf R. Westfeldt, Jr., of New Orleans, La., on the brief), for appellee.

Before PARDEE and WALKER, Circuit Judges, and SHEPPARD, District judge.

WALKER Circuit Judge.

The parties named as defendants to the bill in this case were the Orleans-Kenner Electric Railway Company, a private corporation, and the police jury of the parish of Jefferson state of Louisiana, a municipal corporation, and the purpose of the bill was to enjoin the exercise of the privilege or right which a resolution adopted by the last-named defendant undertook to confer upon the first-named defendant. On its face, the resolution in question purported to do no more than grant to the railway company permission to cross several enumerated public streets and highways in said parish in the construction of an electric road which the railway company proposed to build over its own private right of way. From a decree granting the relief prayed for the railway company appealed.

A motion has been made to dismiss the appeal because of the failure of the other defendant to join in it and the absence of any summons or notice to it of the taking of the appeal. We are not of opinion that the motion is well taken. The interest of the railway company which was affected by the decree rendered was so separate and distinct from that of the other defendant that the former is entitled to maintain an appeal in which the latter does not join. Obviously, the pecuniary or proprietary interest acquired or claimed by the grantee of such a privilege is very different from that of the public governmental body which undertook to confer the privilege. Whatever concern or interest that body may be regarded as having in the maintenance of the power or jurisdiction which it has undertaken to exercise by the action complained of by the bill, that interest is not one which it has jointly or in common with the party in whose behalf the claimed power or jurisdiction was exercised. The beneficial proprietary interest which the latter has in the privilege which it claims to have acquired entitles it to maintain an appeal from a judgment or decree adversely affecting its interest, though the official body which undertook to confer the privilege, and which also was a party defendant to the cause, does not join in the appeal. Where the respective interests of several defendants which are affected by a judgment or decree against all of them are separate and different, one of them may appeal without joining the others. Winters v. United States, 207 U.S. 564, 28 Sup.Ct. 207, 52 L.Ed. 340; 2 Cyc. 758.

The jurisdiction of the court to entertain the bill was dependent upon a diversity of citizenship between the plaintiff and the defendants, and upon the matter in controversy exceeding, exclusive of interest and costs, the sum or value of $3,000. U.S. Judicial Code (Act March 3, 1911, c. 231) Sec. 24, 36 Stat. 1091 (Comp. St. 1913, Sec. 991). The bill alleges diversity of citizenship. Its only allegations as to the interest of the plaintiff which was sought to be protected, or as to the value of anything which was made the subject of controversy in the suit, were the following:

'Your orator is the owner of certain real estate situated in the parish of Jefferson in the state of Louisiana of a value in excess of twenty thousand dollars ($20,000), and is a property taxpayer in said parish of Jefferson, and the right to the use and enjoyment of his said property under the Constitution and laws of the United

...