Southern Railway Company v. Postalco, TELEGRAPH-CABLE

CourtUnited States Supreme Court
Writing for the CourtBrewer
Citation45 L.Ed. 355,179 U.S. 641,21 S.Ct. 249
PartiesSOUTHERN RAILWAY COMPANY, Plff. in Err. , v. POSTALCO
Docket NumberTELEGRAPH-CABLE,No. 64
Decision Date07 January 1901

179 U.S. 641
21 S.Ct. 249
45 L.Ed. 355
SOUTHERN RAILWAY COMPANY, Plff. in Err.,

v.

POSTAL TELEGRAPH-CABLE CO.

No. 64.
Argued November 2, 1900.
Decided January 7, 1901.

This was a proceeding commenced by the Postal Telegraph-Cable Company (hereinafter called the telegraph company) against the Southern railway Company (hereinafter called the railway company) to acquire by condemnation the right to construct its telegraph line along and over the railway company's right of way through the state of North Carolina. The petition therefor was filed by the telegraph company in the office of the clerk of the superior court of Guilford county, North Carolina, on June 11, 1898. A summons was issued requiring the railway company to appear before the clerk of the superior court on June 22, 1898, and answer. On that day the railway

Page 642

company entered a special appearance and filed a petition and bond for the removal of the case to the United States circuit court for the western district of North Carolina. Sundry proceedings were had in that court, such as a motion to remand, which it is unnecessary to notice. On August 31, 1898, the telegraph company by leave filed an amended petition. On September 15, 1898, the court made an order by which it directed its clerk to appoint three commissioners to assess damages and prescribed their powers and duties. On September 19, 1898, the clerk appointed the commissioners as directed, and fixed the time and place for their meeting, and on the same day issued a notice to the railway company of his action. These orders were made on the application of the telegraph company and without notice to the railway company. Thereupon the railway company moved the court to set aside its order of September 15 and for leave to answer. On September 23 the court temporarily suspended the order of September 15. On October 24 an answer was filed, a demurrer of the telegraph company was sustained, and when the railway company asked leave to introduce testimony sustaining the averments of its answer the court overruled the application and refused to permit the railway company to introduce testimony, and so far as was needed reinstated its order of September 15, 1898. Before any further proceedings and without waiting for the assessment of damages by the commissioners and the confirmation of their award by the court, a writ of error and supersedeas was obtained by the railway company, and the case was transferred under such writ of error to the circuit court of appeals for the fourth circuit. That court, on March 31, 1899, dismissed the writ of error for want of jurisdiction, on the ground that no final order had been entered in the circuit court. 35 C. C. A. 366, 93 Fed. Rep. 393. To review this ruling this writ of error was sued out.

Messrs. A. L. Holladay and Robert Stiles for plaintiff in error.

Mr. J. R. McIntosh for defendant in error.

Page 643

Mr. Justice Brewer delivered the opinion of the court:

The single question we deem it necessary to consider is whether a final judgment or order had been entered by the circuit court which could be taken by writ of error to the circuit court of appeals.

Luxton v. North River Bridge Co. 147 U. S. 337, 341, 37 L. ed. 194, 196, 13 Sup. Ct. Rep. 356, is decisive of this question. Indeed, little more seems necessary than a reference to the opinion in that case. There, as here, in condemnation...

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23 practice notes
  • United States v. 243.22 Acres of Land, No. 349.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 26, 1942
    ...here: In Luxton v. North River Bridge Co., 147 U.S. 337, 13 S.Ct. 356, 37 L.Ed. 194, and Southern Ry. Co. v. Postal Tel. Cable Co., 179 U.S. 641, 21 S.Ct. 249, 45 L.Ed. 355, both condemnation suits, appellate jurisdiction was denied where damages remained to be assessed. It was similarly de......
  • United States v. New York, New Haven & Hartford R. Co., No. 109
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 2, 1959
    ...Telegraph Cable Co. v. Southern Railway Co., C.C.W.D.N.C.1898, 89 F. 190, 194 appeal dismissed, 4 Cir., 1899, 93 F. 393, affirmed, 1901, 179 U.S. 641, 21 S.Ct. 249, 45 L.Ed. 355. See Kendall v. United States ex rel. Stokes, 1838, 12 Pet. 524, 625, 9 L.Ed. 1181. For many years Congress has u......
  • School Dist. of Kansas City v. State of Mo., No. 77-0420-CV-W-1-3.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • October 6, 1978
    ...relief on the legal rights or interests of third parties. citations omitted Warth v. Seldin, supra, 422 U.S. at 499, 95 S.Ct. at 2205, 45 L.Ed. at 355. Without such limitations on the exercise of judicial power, the courts would be asked to decide abstract questions of wide public significa......
  • Evans v. Davidson, 6331
    • United States
    • United States State Supreme Court of Idaho
    • April 2, 1937
    ...P.2d 466, 469; 34 C. J., p. 743; Cromwell v. Sac County, 94 U.S. 351, 24 L.Ed. 195, 197; Southern Ry. Co. v. Postal Telegraph-Cable Co., 179 U.S. 641, 21 S.Ct. 249, 45 L.Ed. 355.) Jurors will not be permitted to support or explain their verdict in the Pheby Evans case by affidavits which im......
  • Request a trial to view additional results
23 cases
  • United States v. 243.22 Acres of Land, No. 349.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 26, 1942
    ...here: In Luxton v. North River Bridge Co., 147 U.S. 337, 13 S.Ct. 356, 37 L.Ed. 194, and Southern Ry. Co. v. Postal Tel. Cable Co., 179 U.S. 641, 21 S.Ct. 249, 45 L.Ed. 355, both condemnation suits, appellate jurisdiction was denied where damages remained to be assessed. It was similarly de......
  • United States v. New York, New Haven & Hartford R. Co., No. 109
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 2, 1959
    ...Telegraph Cable Co. v. Southern Railway Co., C.C.W.D.N.C.1898, 89 F. 190, 194 appeal dismissed, 4 Cir., 1899, 93 F. 393, affirmed, 1901, 179 U.S. 641, 21 S.Ct. 249, 45 L.Ed. 355. See Kendall v. United States ex rel. Stokes, 1838, 12 Pet. 524, 625, 9 L.Ed. 1181. For many years Congress has u......
  • School Dist. of Kansas City v. State of Mo., No. 77-0420-CV-W-1-3.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • October 6, 1978
    ...relief on the legal rights or interests of third parties. citations omitted Warth v. Seldin, supra, 422 U.S. at 499, 95 S.Ct. at 2205, 45 L.Ed. at 355. Without such limitations on the exercise of judicial power, the courts would be asked to decide abstract questions of wide public significa......
  • Evans v. Davidson, 6331
    • United States
    • United States State Supreme Court of Idaho
    • April 2, 1937
    ...P.2d 466, 469; 34 C. J., p. 743; Cromwell v. Sac County, 94 U.S. 351, 24 L.Ed. 195, 197; Southern Ry. Co. v. Postal Telegraph-Cable Co., 179 U.S. 641, 21 S.Ct. 249, 45 L.Ed. 355.) Jurors will not be permitted to support or explain their verdict in the Pheby Evans case by affidavits which im......
  • Request a trial to view additional results

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