Rapides Cent. Ry. Co. v. Missouri Pac. R. Co.
| Decision Date | 05 November 1945 |
| Docket Number | 37959. |
| Citation | 24 So.2d 240,209 La. 26 |
| Court | Louisiana Supreme Court |
| Parties | RAPIDES CENT. RY. CO. v. MISSOURI PAC. R. CO. et at. |
Hudson, Potts, Bernstein & Snellings, of Monroe for relators.
Sholars & Gunby, of Monroe, for respondent.
The relators Missouri Pacific Railroad Company and Guy A. Thompson trustee in bankruptcy of the Missouri Pacific Railroad Company, seek by mandamus to compel Honorable Cleveland Dear Judge of the Ninth Judicial District Court for the Parish of Rapides, to grant a suspensive appeal from a judgment rendered by him on June 25, 1945 in the suit of Rapides Central Railway Company v. Missouri Pacific Railroad Company et al. or, in the alternative, for the devolutive appeal bearing No. 37,957 of the docket of this Court taken in said cause to be treated as a suspensive appeal.
The plaintiff, Rapides Central Railway Company, brought suit against the Missouri Pacific Railroad Company and Guy A. Thompson in the lower court to expropriate a crossing over the tracks and right of way of the defendant railroad company for the construction of an overpass or viaduct.
The defendants excepted to the plaintiff's petition on the ground that the plaintiff was without 'qualification, capacity, right, power, and authority to exercise the power of eminent domain or expropriation herein sought.'
The trial judge overruled the exception, and the defendants applied for and obtained a suspensive and devolutive appeal to this Court from the judgment overruling the exception.
After the appeal was lodged in this Court, the appellee moved to dismiss it on the following grounds: (1) that the appeal was not properly and timely taken and made returnable as required by law; (2) that the Supreme Court was without jurisdiction to entertain the appeal; and (3) that the judgment rendered by the district court was not a definitive judgment but a mere interlocutory judgment from which no appeal is allowed by law.
Upon hearing, this Court sustained the motion and dismissed the appeal on the ground that the judgment was a preliminary or interlocutory decree from which no injury could be suffered and pointed out that the defendants could obtain relief by appeal from a judgment on the merits of the case. See 207 La. 870, 22 So.2d 200.
The lower court, upon trial of the merits, gave judgment in conformity with the verdict of the jury of freeholders, granting the plaintiff a crossing, servitude or passage, and right of way by overhead viaduct over and across the tracks and right of way of the railroad of the defendants upon payment of $800 to the defendants.
The defendants applied for a suspensive and devolutive appeal from the final judgment. The lower court granted a devolutive appeal but refused to grant the defendants a suspensive appeal. The devolutive appeal bears No. 37,957 of the docket of this Court.
The defendants applied to this Court for a writ of mandamus, seeking to compel the trial judge to grant a suspensive appeal from the judgment of the lower court and, in the alternative, asked that the devolutive appeal lodged in this Court be treated as a suspensive appeal. A rule was issued directing the plaintiffs to show cause why the relief prayed for should not be granted. In response thereto, the respondents take the position that the writ is in aid of appellate jurisdiction, and that this Court is without right to entertain such for the reason that the jurisdiction of the appeal is vested in the Court of Appeal. The rule is now submitted for our determination.
From an examination of the plaintiff's petition, seeking expropriation, we find that the value of the right of way is alleged to be $50. The judgment of the trial court awards the defendants $800 for the right of way. There is nothing in the pleadings to show that the right of way is worth an amount in excess of that awarded by the lower court.
It appears from an examination of the application for the writ of mandamus and the relators' brief in support of the rule issued herein that the relators' complaint is not levelled at the award of the jury of freeholders but at the legal right, power, and authority of the respondents to expropriate the right of way.
Under the provisions of Article VII, sec. 10, of the Constitution, the amount involved herein is not sufficient to grant us appellate jurisdiction in this cause.
From our examination of the record, no constitutional question over which we have jurisdiction has been raised in the case. The relators...
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