United States v. Dieckmann, No. 6572.

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: EVANS, SPARKS, and MAJOR, Circuit
• Citation: 101 F.2d 421
• Parties: UNITED STATES v. DIECKMANN et al.
• Decision Date: 13 January 1939
• Docket Number: No. 6572.

101 F.2d 421 (1939)

UNITED STATES
v.
DIECKMANN et al.

No. 6572.

Circuit Court of Appeals, Seventh Circuit.

January 13, 1939.

101 F.2d 422

Andrew W. Kops, of Cincinnati, Ohio, and R. E. Noelker, of Batesville, Ind., for appellants.

Carl McFarland, Asst. Atty. Gen., Val Nolan, U. S. Atty., of Indianapolis, Ind., and Thomas E. Harris, C. R. Denny, Jr., and L. E. Jones, Jr., all of Washington, D. C., for the United States.

Before EVANS, SPARKS, and MAJOR, Circuit Judges.

SPARKS, Circuit Judge.

This appeal from a judgment of award in a condemnation proceeding raises the question of the constitutionality of the action of the Federal Government in condemning privately owned land in an organized State for the purpose of creating a "demonstrational recreational park," pursuant to Title 2 of the National Industrial Recovery Act of 1933, § 201 et seq., 40 U.S. C.A. § 401 et seq.

Appellee filed its petition for condemnation and declaration of taking October 1, 1934, and its amended petition for condemnation April 15, 1935, reciting the estimated value of the land proposed to be taken at $2,000, which sum was deposited in the Registry of the Court. The petition named appellants (who are husband and wife) and numerous others as parties to the proceedings. In August, 1934, appellant Raphael had signed an option to sell the land involved for an agreed price of $2,000, with the understanding that if judicial procedure were deemed necessary, the compensation to be claimed by the owners and the award to be made for the lands should be on the basis of that purchase price. In September, 1935, appellants filed their demurrers to the petition accompanied by a memorandum setting forth the following reasons:

"The petition does not state facts sufficient to constitute a cause of action and is defective because the purpose for which the land is sought to be condemned is not a public purpose under purview of the Constitution of the United States, U.S.C.A. Const.Amend. 5.

"The United States has no authority under the Constitution to condemn lands for the purposes set out under the Act of Congress herein.

"That the Act of Congress upon which this suit is based is a delegation of delegated powers and provides no standards under which the President or his appointees may act."

The demurrers were overruled and appraisers were appointed over the objections of appellants. They appealed from the order of appointment, and this court, holding the appeal premature, dismissed it. See Dieckmann v. United States, 7 Cir., 88 F. 2d 902. Thereafter the appraisers were unable to agree as to the appraisal, and a second group of appraisers was appointed, again over the objections of appellants on the same grounds as had previously been relied upon, and, in addition, that the Act under which the Government was proceeding did not give the right to condemn property for recreational park purposes. This point had been raised for the first time in the brief before this court in the appeal held premature and dismissed. The new

101 F.2d 423

appraisers assessed damages for the taking at $2300, of which they apportioned appellant Raphael's share at $1516.65; Alma's (arising out of her inchoate right of dower) at $758.33; and the county's for unpaid taxes, $25.02. Appellants excepted to the award, and upon hearing, a jury rendered a verdict of $2900, on which the court entered judgment directing payment of the entire sum (less the amount due the county) to Raphael. Both appellants applied for and were allowed an appeal, and they filed joint assignments of error

At the outset, appellee seeks to foreclose our consideration of the merits of the cause on the ground that since the wife did not assign error as to the court's ruling that her husband was entitled to the entire award, the judgment is conclusive as to her, and since the two of them filed joint assignments of error, none being good as to her, none are available to him. Appellee cites and relies on Wimberly v. Cowan Investment Corp. 5 Cir., 80 F.2d 452, as authority for this proposition. However, we are unwilling to rest our decision of the case on this in view of the fact that this court has held that assignments of error are not jurisdictional. See Hultberg v. Anderson, 7 Cir., 203 F. 853, and cases there cited; Benjamin v. Buell, 7 Cir., 268 F. 792, 793. See also, for similar rulings of other Circuit Courts of Appeal, Bernard v. Lea, 4 Cir., 210 F. 583; Robinson v. U. S., 5 Cir., 84 F.2d 885; Robertson v. Morganton Full Fashioned Hosiery Co., 4 Cir., 95 F.2d 780. We are of opinion that since the rule as to the filing of assignments of error is not mandatory, we may relax it for good cause shown. We consider that where two parties join in an appeal as to subject-matter in which only one, in fact, has any interest, we are not obliged to dismiss the appeal for the...